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Select Committee on Agriculture, Food and the Marine debate -
Tuesday, 11 Dec 2012

Animal Health and Welfare Bill 2012: Committee Stage (Resumed)

I welcome the Minister and his officials to the meeting. I understand the Minister must leave at 5 p.m. and I understand Deputy Maureen O'Sullivan instead of Deputy Daly is substituting for Deputy Pringle. We are resuming on section 24, amendment No. 44. This has already been discussed with amendment No. 1.

SECTION 24

I move amendment No. 44:

In page 23, subsection (1), lines 39 to 41, to delete all words from and including "If" in line 39 down to and including "may" in line 41 and substitute the following:

"If an inspector or an authorised officer acting on the advice of a veterinary practitioner has reasonable grounds for believing that a protected animal is injured

or suffering or is in a state of neglect or distress, the inspector or officer may".

Amendment put and declared lost.

I move amendment No. 45:

In page 23, subsection (1), line 39, to delete "authorised officer" and substitute the following:

"inspector or an authorised officer acting on the advice of a veterinary practitioner".

Amendment put and declared lost.

I move amendment No. 46:

In page 23, subsection (1), line 41, to delete "acute".

There is a difference of opinion between some veterinary practitioners and our legal advisors with regard to the meaning of "acute". This section provides that an authorised officer may require a person to take such steps as are necessary to alleviate a case where an animal is in acute distress or an acute state of distress. This would include obtaining necessary veterinary care or providing appropriate shelter or food. A person who fails to comply with this provision commits an offence. Should this not be enough, the officer may seize and detain the animal before disposing of it, including by re-homing.

I understand the reason for this amendment is that in the veterinary profession, "acute" has a more limited meaning than in ordinary language. I have been advised by the Parliamentary Counsel that in interpreting legislation, the courts will follow the ordinary meaning of language, having regard to the context in which it is used rather than specialist use. For that reason we are not proposing to accept the amendment. Basically, I am taking the advice of Parliamentary Counsel over that of some veterinary practitioners around the concern about using the word "acute" in the profession. I am obliged to take that advice.

Is the Minister saying that, in effect, if the animal is in distress or neglected, in reality there will be no constraint on an authorised officer taking action?

That is basically my understanding. In this context "acute" means serious, urgent and requiring attention. That is the Webster's Dictionary meaning of the word "acute". It applies if an animal is injured, suffering or in a state of acute neglect or distress. In other words, if the matter is serious, urgent or requiring attention as a result of an animal's distress or neglect, an authorised officer may take measures.

Is it "or" or "and"?

It is "serious, urgent and requiring attention". That is the dictionary definition.

I accept it if it has "and" in it. I have a big interest in dictionaries and Deputy McNamara understands what I am saying.

For the amusement of the committee, the Deputy might like to hear that there was an animal welfare issue last night when a swan walked in from the road through the main gates of the Department, meaning no cars could get in or out. It landed on Merrion Square or on the street and could not take off because of the tall buildings. The security officers built a nest for the swan, where it stayed until it was taken by animal welfare people today.

The cats did not get at it.

Deputies will be glad to hear that we are trying to practice what we preach in this Department.

Was it in acute distress?

The swan is now safely back on the canal.

I hope everybody in the Department is also safe. Swans are not the most pleasant animals when they get annoyed.

Amendment, by leave, withdrawn.

The next amendment is amendment No. 47.

The amendment would involve a potential charge on the Exchequer as the financial burden resulting from taking steps to remedy breaches of the legislation on animal health and welfare would be borne by the State. A note was sent to the Deputy to that effect.

Amendment No. 47 not moved.
Section 24 agreed to.
SECTION 25

Amendments Nos. 48, 49 and 51 are related and will be discussed together by agreement.

I move amendment No. 48:

In page 24, subsection (1)(b), line 31, after “adopt” to insert “, in whole or in part,”.

These amendments do not change the meaning of the text. They are a series of minor amendments to improve the grammar and readability of the section. They make no material change other than to clarify that the Minister may adapt only part of an existing code of practice if he or she wishes. I hope that members will accept my explanation.

Amendment agreed to.

I move amendment No. 49:

In page 24, subsection (2), line 36, to delete “guidelines”.

Amendment agreed to.

I move amendment No. 49a:

In page 25, subsection (2), lines 2 and 3, to delete paragraphs (f) and (g) and substitute the following:

“(f) the provision of housing and shelter for animals,

(g) allowing animals to exhibit their natural and normal behaviour, or

(h) safeguarding animals from environmental hazards.”.

My amendment deals with the same concerns of amendment No. 50 and should be grouped with it.

Has amendment No. 49a been grouped with amendment No. 50?

No, it was discussed with amendment No. 12. It was the Minister's suggestion.

May I explain amendment No. 49a?

We have already discussed it but I shall allow the Minister two minutes.

My amendment adds a new subsection. It states:

In page 25, subsection (2), lines 2 and 3, to delete paragraphs (f) and (g) and substitute the following:

(f) the provision of housing and shelter for animals,

(g) allowing animals to exhibit their natural and normal behaviour, or

(h) safeguarding animals from environmental hazards.”.

Paragraph (g) deals with the next amendment. The amendment itself also returns to the five freedoms that we discussed during our last meeting and which are provided for in different sections of the Bill.

Amendment agreed to.

Amendment No. 50 was tabled by Deputies Pringle and Éamon Ó Cuív but cannot be moved because we have already discussed it with amendment No. 12. It is related to amendment No. 49a once amendment No. 49a is moved.

Amendment No. 50 not moved.

I move amendment No. 51:

In page 25, subsection (4), line 13, to delete “(if any)”.

Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26

I move amendment No. 52:

In page 26, subsection (2), line 14, to delete “an”.

This is a very minor technical amendment that was recommended by drafters to ensure consistency when referencing the animal health levy. When one omits the word "an" from the sentence it no longer reads as well. I would have inserted the word "the". With regard to legal jargon - Deputy McNamara can help us here - the Parliamentary Counsel has recommended the removal of the word "an". It does not change my reading of the amendment. From a legal point of view the change will bring better clarity.

Amendment agreed to.

I move amendment No. 53:

In page 26, subsection (3), line 23, after “House” to insert the following:

“having been discussed by the relevant Committee of the House”.

The purpose of my amendment is to ensure that now that we have good and effective Oireachtas committees no regulations are signed by a Minister without first being discussed by a committee. If we examined secondary legislation it would avoid a lot of the gremlins that arise. An announcement is made but nobody sees it going through the Dáil and its passed. Then unintended consequences arise. My amendment would provide a good protection for future Ministers. As with EU legislation, we should scrutinise all regulations here before they are signed by a Minister. A committee may scrutinise regulation but it does not give it the power to overrule a Minister. It does ensure that he or she hears the wisdom of the committee and takes it into account before signing off.

I understand where the Deputy is coming from. There is a standard procedure surrounding the laying of regulations before the House. I ask the Deputy to read the fourth last paragraph on page 10 of the Bill. It defines the laying of regulations and orders and describes what is required. It also describes what must be done to annul an order and how the House can take action. I agree with the Deputy that before introducing a regulation, we should arrange a discussion by a committee to tease out the issues and thus ensure that we have got them right. I do not know whether we need to insert a requirement for a Minister to do so in primary legislation. I have been advised that such a provision is inadvisable. It is the House that should decide whether a regulation goes to a committee for consideration. I do not propose to accept the amendment. It goes too far into primary legislation even though it would make some sense to do it from an agricultural and animal health point of view.

When I was a Minister on the other side of the House I did this with regulations and I was one of the first Ministers who brought regulations to committees. I remember one regulation that could have been contentious but we twice went over very detailed procedure and followed the advice given by the committee. What could have been contentious turned out to be not contentious at all.

I believe that one is not going to change matters by making something desirable. The reality is that Ministers will be told that it is desirable to bring regulations to a committee but they are in a hurry because Departments always issue them at the last minute. A Minister is told that he or she must sign the regulation and, therefore, nothing will change. Obviously the House is controlled by whatever government is in power. That is the reality of the system that we operate. I am not sure that it is easy to change that part of the system. I would not like to live with the American system where its Executive does not have a working majority in the house so nothing gets done. I am not opposed to the idea of the Executive having a working majority in the House unless it steps completely out of bounds. Of course I mean a practical working majority and not a theoretical one. To ensure that there is proper debate we must build on what we have done with EU legislation and the provision must be written into primary legislation otherwise there will be no progress. I would prefer if the Government introduced an omnibus ruling or a new Standing Order that no regulation could be passed unless it was referred to an appropriate committee. I will not hold my breath to see if that will happen in the short term.

I ask the Minister to accept my amendment. This is one case that is not based on technical advice supplied by a draftsperson. The Minister has received policy advice not to bring all of this down on our heads because it is too much hassle. Legislating can never be too much hassle. Every shortcut taken with legislation - all governments have done it - has always proven to be the most vulnerable to controversy and difficulty.

I like to think that I could not be accused of shying away from discussion at committees. At this stage I have attended here a couple of times a week. I am sure that I shall be back again when my Department brings forward a series of regulations and codes of conduct that we must put in place. I am sure that we shall discuss them even more when we deal with valuation.

It is also important that there is consistency across Departments in terms of how regulations are passed in primary legislation. If a Minister for Agriculture, Food and the Marine on the one hand required that all regulations being introduced must first go to a committee and other Ministers said that regulations can be made by just laying them before the House, there would be inconsistency in how regulations are passed. I am not sure that is sensible.

If we were to do what Deputy Ó Cuív would like, the way to deal with it in primary legislation is to agree that all regulations would come before a committee before they would be passed. However, there are certain circumstances in which Ministers need to pass regulations quickly, particularly in the case of disease outbreak or the like. It is important that there would at least be the option of passing a regulation quickly in response to a crisis. Going through a procedure of committee scrutiny beforehand would be the preferable option when we have the time to do it, but I am not sure that we should tie a Minister's or Government's hands generally. We would set a precedent if we do it here with regard to passing regulations. I am sure that when Deputy Ó Cuív was a Minister there were times when he had to make decisions to introduce regulations without delay by laying them before the House. There was an opportunity for the House to annul them within 21 days before they came into force, which is the required procedure.

On balance, I hope the members will find that I am a Minister who will come before this committee to get its views before I introduce regulations, as I did before the budget. However, I do not agree that we should put that into legislation as a requirement.

Amendment put:
The Committee divided: Tá, 2; Níl, 6.

  • O'Sullivan, Maureen.
  • Ó Cuív, Éamon.

Níl

  • Barry, Tom.
  • Coveney, Simon.
  • Deering, Pat.
  • Doyle, Andrew.
  • Heydon, Martin.
  • McNamara, Michael.
Amendment declared lost.
Section 26, as amended, agreed to.
Sections 27 to 29, inclusive, agreed to.
SECTION 30

Amendments Nos. 54 and 56 are related and will be taken together by agreement.

I move amendment No. 54:

In page 28, subsection (1)(h), line 26, to delete “identified” and substitute “possible to identify”.

The phrase in the Bill states, "it is not identified in accordance with animal health and welfare regulations". This may be a pedantic point but until someone identifies it, it is not identified. My view is that it is intended to refer to cases where it is not possible to identify it. If one sees a cow at 100 yards, one has not identified it but if one reads the ear tag, one identifies it. The fact that it is not identified may mean that it has not been examined in order to identify it. In contrast, if one includes the phrase "possible to identify" one refers to the fact that one tried to identify it but did not succeed.

I will try to respond. The context of use of the word "identified" is the reference in the Bill, "it is not identified in accordance with animal health and welfare regulations", which are quite clear in terms of what identifies an animal in respect of traceability. The real danger is imported animals without identification and the disease risk they pose. The identification systems provide important safeguards and reassurance to customers domestically and internationally and there is no room for doubt. If an animal is untagged and lacks the proper papers, then it is not identified. To change this wording from "not identified" to "not possible to identify" would make it unenforceable. If a sheep has no tags then it is not identified. If the amendment were accepted, the subsection could never be applied as it is always possible to identify it if one can tag it. That does not change the fact that one may not know where it originated or the disease risk it poses. Its disease status remains unverifiable, therefore it presents a real danger to the health status of our country as a whole and the viability of our highly export-orientated agri-food sector. It may also be a threat to public health if it enters the food chain. It is with this concern in mind that unidentified animals are in breach of EU regulations, which require that animals be identified with reference to a register and tags. Furthermore, these EU regulations provide for remedial action if tags are lost.

This has been an issue in some Border counties when we had disease risk. We needed to take action. If animals were abandoned and the tags were removed from their ears, we had to be able to take action. Under the regulations, it is possible to re-tag animals. For example, it may not be common practice but it happens quite a lot that mountain sheep lose tags. We do not want animals that lose their tags in a commonage area or in mountainous areas, having been caught in a hedge or a wall, should be deemed to be not identified. That is dealt with under the regulations for re-tagging. The strong advice is that we need to be legally clear and strong in this area in respect of the powers of the Minister. For the reasons outlined, the current wording is stronger than that proposed by the Deputy.

We must go with the superior advice. I am not convinced but I will not die in the ditches on that point.

Amendment put and declared lost.
Amendments Nos. 55 and 56 not moved.

I move amendment No. 57:

In page 29, between lines 12 and 13, to insert the following subsection:

“(5) The Minister will ensure that humane practices are used in the eradication of mink for their fur or by products and that the use of gas in the killing and eradication of mink on mink farms is not practised, while ensuring that minimal suffering is caused to the animal during the eradication process.”.

Amendment put:
The Committee divided: Tá, 3; Níl, 6.

  • Ferris, Martin.
  • O'Sullivan, Maureen.
  • Ó Cuív, Éamon.

Níl

  • Barry, Tom.
  • Coveney, Simon.
  • Deering, Pat.
  • Doyle, Andrew.
  • Heydon, Martin.
  • McNamara, Michael.
Amendment declared lost.
Section 30 agreed to.
SECTION 31
Amendment No. 58 not moved.

Amendments Nos. 58a, 60 to 62a, inclusive, and 64 are related and will be discussed together.

I move amendment No. 58a:

In page 29, subsection (1), line 16, to delete “section 32(9)” and substitute “section 32(6)”.

We have tried to put as much thought as possible into this section. It relates to compensation for owners of animals when those animals must be put down or removed from the herd in the case of TB and so on. The valuation around that is a complex enough matter to get right in legislation. The wording as it stands proposes the Minister would propose a valuer and if the farmer was not happy with that valuer, the Minister would propose a second valuer. If the farmer still was not happy with the valuation from the second valuer, the Minister would propose an arbiter for arbitration. I felt that was a one-sided process in terms of the person choosing the people involved. I propose to change this by removing this section and inserting a new section under amendment No. 60. This is a much more measured way to deal with this.

The key element is subsections (8)(a), (b), (c), (d), (e) and (f), in particular, (g) and (h), whereby the Minister will deal by way of regulation with how valuers are proposed and accepted and how the arbitration system might work. The reason is that a Minister needs to have the flexibility to sit down with farming organisations or with this committee to discuss schemes that may be introduced and decide in the future to improve or change things by regulation rather than having to go back to primary legislation. This is a tricky enough area. When we raise this issue people assume we are discussing or confining the legislation to existing schemes such as the TB eradication scheme, which has been hugely successful, that applies compensation when reactors are taken out of a herd and likewise for other eradication schemes. However, there may be some other disease that we do not know about that we may need to respond to.

We also must have flexibility not to pay compensation in certain instances, such as in cases in which farmers may have deliberately spread a disease within their animals; may have infected their animals with a disease; or may have smuggled animals from one farm to another. Clearly if somebody has been doing something illegal and as a result animals must be removed from the herd, he or she should not be paid compensation. There may be instances where only partial compensation is required.

There was a fear initially that under this legislation we were moving away from paying farmers compensation for animals under the eradication scheme or some similar scheme in order to save money. Nothing could be further from the truth. We need buy-in from farmers in particular for schemes that are about animal health and human health. That is the reason we will continue to pay compensation. That is the reason I want the flexibility to keep the existing schemes, which are working and have significant buy-in from farmers.

The scheme is costing us a reduced amount of money each year because it is working. We have fewer cases of TB in the Irish herd than at any time since 1953, when the effect of TB on the national herd was first measured. We are making significant progress, unlike the Government in the United Kingdom mainland and Northern Ireland, which has found it very difficult to make progress in the eradication of the disease in their herds. Part of that success has been as a result of a compensation scheme with which farmers are happy. No farmer is happy to have TB in the herd but they accept they need to take reactors out of the herd and deal with the consequences of the spread of TB. They are compensated for that.

The process by which animals would be valued is something that requires regulation. It is too difficult to deal with it with a blunt tool such a primary legislation. There are other elements that we must deal with through regulation that will also involve guidelines. If one has an outbreak of disease in more intensive farming stock such as chickens, the measurement of compensation is very different. One will not have a valuer valuing the value of individual chickens in a chicken house that has 3,000 or even 10,000 chickens. We will need to be able to deal with different scenarios by regulations as appropriate. This is an obvious example of coming back to the committee with regulations on valuation to ensure we tease out all the issues. It will also be necessary to have quite detailed consultations with farming organisations to ensure we get buy-in from them so that we are on the same page in respect of the valuation system, that is accurate and fair. We do not want to over-compensate farmers, we cannot afford it, in particular at this time, but the valuation must be fair so that both farmers and the authorities are working towards the eradication of diseases that we can eradicate. We must continue to improve and add to the existing schemes.

I hope that explanation deals with some of the concerns that Deputy Ó Cuív has tried to deal with by way of tabling amendments. I know he had an issue in relation to using guidelines for valuations. I am not sure the guidelines are overly relevant to the way the eradication scheme currently works. However, if one has to put in place a new valuation system for pigs or poultry, one would need guidelines to follow an accurate valuation system so that one would not be valuing individual animals one after the other but taking a mean valuation across a flock or a group of animals.

That is what we are proposing to do in amendment No. 60. Amendments Nos. 58a and 62a are very minor amendments correcting the technicalities and cross-references as a result of putting in a new section.

I acknowledge that the Minister has recast section 32 by tabling amendment No. 60. It is an improvement on what was there before. I also accept the Minister's statement that one cannot value individual chickens or whatever. My worry is that a Minister could start issuing guidelines that would mean that people would not get full compensation at the value on the day. I will reflect on the issue. We have a new section. Of course I would like to have a section amended to state that all these regulations would have to come before the House, which we can do on Report Stage.

I will move my amendment later. In the meantime, I will reflect on what the Minister has said in his explanations, then we can come back to this on Report Stage.

Chairman Amendment No. 64 was also in that grouping. I invite Deputy Ó Cuív to address it now.

Amendment No. 64 in my name seeks to set out procedures on the abatement of compensation. I fully accept there are situations as the Minister has outlined in which compensation should not and cannot be paid. People cannot be compensated if they have drawn the problem on themselves. I believe that if compensation is refused, there is a right to seek an independent appeal and it is very important that people would be informed about that and the associated timeframe. As the processes become more thorough, they also become much longer. Those of us who deal with the Ombudsman find that one would nearly need to take the Ombudsman to the Ombudsman because of the delays which have become pervasive across the system.

There are very clear rules around arbitration. Arbitration is defined in section 33.

I am proposing an amendment to section 35.

The Deputy is proposing to add "shall inform the owner of the independent appeal process to the decision and the associated timeframe.".

I understand an independent appeals process is not available if a Minister decides not to pay compensation for any of the reasons outlined. However, a person may challenge a Minister's decision in the courts. The Department does not have an appeals process in place because it would be farcical to have the Department deal with an appeal against a decision made by the Minister. Two valuation systems and one arbitration system are in place for this reason. While the Minister can introduce guidelines, he or she cannot decide on a valuation of an animal. Such decisions must be taken by a valuer or arbitrator, although to be fair to Deputy Ó Cuív, that is not the point he is making.

What is my point?

If there is an abatement of compensation, in other words, if the Minister refuses to pay part of the compensation for any of the reasons I outlined, the Deputy proposes that the person should be given notice that he or she may appeal the decision. It is my understanding that the only option available to the person is to take a case to court, as there is no appeals process in place.

Is it not possible to use the Department's internal appeals process?

No, this matter is not part of the internal appeals process as a person would be appealing against a decision made by a Minister of the Department.

That is always the case in appeals processes. If one appeals a decision not to award a grant, it is dealt with by the appeals section of the Department and one is effectively appealing against the Minister.

In that instance, one is appealing against a decision that one does not qualify. In this case, however, the Minister is refusing to pay compensation for one of the reasons outlined. For instance, where a person has failed to take responsible measures to alleviate the risk or spread of a disease, failed to take appropriate biosecurity measures or failed to comply in a material way with the relevant code of practice.

Let us take as an example a refusal to make a disadvantaged areas payment on the ground that the Minister believes the applicant did not submit a form in time. The applicant may appeal the Minister's decision and if he or she can prove the form was submitted on time, force majeure circumstances apply and he or she can avail of the Department's appeals process to have the decision overturned. I am surprised that if one is refused compensation for one of the reasons the Minister cited, all of which are less clear-cut than an opening or closing date, one cannot appeal the decision other than through the courts. While the Minister may believe a person has been negligent, the person in question may be able to prove he or she was not negligent. I am surprised the legislation does not provide for an appeals mechanism other than through the courts, although it appears a case may be brought to the Ombudsman.

The Deputy should not be surprised at this provision as a similar provision was introduced in previous legislation. Appeals related to tuberculosis grants were specifically excluded from the appeals process in the Agricultural Appeals Act.

When I read this Bill I asked whether it would provide for an appeals process. A Minister must have good cause for not paying compensation and the issue would need to be clear-cut before a refusal would be made. The Bill clearly sets out what would be required before a Minister would decide not to pay full or partial compensation. To appeal against the Minister's decision in such circumstances would be-----

I do not mean any disrespect but officials in the Department of Social Protection would tell the Minister that applications for invalidity pensions, disability pensions and many other payments are currently being refused by rote, despite medical evidence and so forth being available, and applicants are being told they can appeal the decision. Who is to say this practice will not occur in the Department of Agriculture, Food and the Marine?

If a person does not receive compensation for a diseased animal, it is because he or she has broken the law. That is different from a person being refused a pension or social welfare benefit on the basis that he or she does not qualify.

People who have qualified for payments for the past 15 years are receiving notification that they no longer qualify. The two sets of circumstances are similar.

In the cases we are discussing, the person is breaking the law. This provision applies where a person has "imported, sold, supplied, moved or otherwise dealt with the farm animal, animal product, animal feed or other thing to which the application for compensation relates in contravention of an enactment to which paragraph (f) refers." In other words, where a person breaks the law, presumably to obtain compensation, the Minister has the power to refuse such compensation. A long appeals process is not required in such cases.

Would an order of a court be required indicating that the person had broken the law or would it be a matter of the Minister forming the opinion that the person had broken the law?

The Minister's decision would have to be consistent with the legislation.

It would not be based on a decision by a court that the law had been broken.

No, the decision lies with the Minister. However, persons who believe they have been treated unfairly have recourse to the courts.

The courts are the privilege of the rich; they are not practical for the poor. If the owner of three cows contacts my office because the Minister has refused compensation, I will point out that taking a case to court is akin to placing a €30,000 bet on a horse at the Galway Races. One could win €60,000 or just as easily lose the €30,000. The same principle applies where a person takes a case to court to secure a small amount because the risk and costs of going to court far outweigh the benefit the person may obtain from compensation. Appeals mechanisms and access to the Ombudsman are important to the poor because they cannot afford to take cases to court.

Taking a case to court is not the first course of action. I will read the relevant section in order that people understand the process. Subsection (3) states:

(3) Where the Minister proposes to reduce or refuse to pay an amount of compensation otherwise payable to an owner referred to in subsection (1), he or she shall—

(a) inform in writing the owner, stating the proposal and giving reasons for the proposal, and informing the owner that he or she may make representations in relation to the proposal within 14 days of the date of the notice,

(b) consider any representations duly made, and

(c) make a decision and inform in writing the owner, stating the decision and the reasons for the decision.

A decision will not come out of the blue. The Minister will inform the person in writing of the reason for non-payment and the person will have an opportunity to query the Minister's decision. The Minister is then required by law to consider any such representations and inform the owner of his or her subsequent decision in writing. The decision can then be challenged in the courts if a person is denied compensation.

Can the matter be referred to the Ombudsman?

I am not sure what powers the Ombudsman has in this regard.

In the circumstances outlined by the Minister, the decision will be taken on the basis of a report provided by a departmental official.

I presume that would be the case because an authorised officer will provide a report stating that a person has, for example, deliberately infected an animal with tuberculosis in an effort to obtain compensation.

Infecting an animal with tuberculosis or any other disease is a criminal offence. Has the Minister or any of his predecessors made a determination on an official's report without criminal action being taken against the individual in question?

While I am not aware of any such determinations, I am aware there have been cases involving the deliberate spread of disease to obtain compensation.

I expect the Minister is aware of a case where a credible officer from the Irish Farmers Association gave evidence on behalf of a certain farmer who was denied all his entitlements.

Because that farmer was not in a position to go to the courts, he lost his compensation.

What would change if we adopted Deputy Ó Cuív's amendment?

He had no way other than to go to the courts; that was all he had left. He told me he could not afford to go through the courts and he finds himself in the position where he has lost his compensation. He was offered partial compensation. Despite the fact that evidence was given by the IFA leadership in the area in support of him, the determination was made by the Minister on the advice given to him by the Department official. The farmer in question claims it was a personal issue between the Department official and himself.

This is where a person is being given the opportunity to come back and make representations in writing to the Minister if they feel an unfair case is being made against them. I would like to think that a Minister would be of sufficient independent mind to see that.

The Minister knows that from being a Minister. A Minister has got a few thousand civil servants and he cannot go out on the farm and investigate the circumstances and, therefore, the report comes back up through the same chain of command. Will the Minister clarify between now and Report Stage whether a person would have a right to get such a decision examined by the Ombudsman for fair procedure?

I am informed they would have that right in terms of fair procedure but I would not have thought the Ombudsman would have the capacity to go out and inspect animals because he or she would not have the expertise for that. The Ombudsman would examine whether the person had been treated fairly in terms of the existing procedure.

Will the Minister investigate that?

Yes, we can do that.

Amendment agreed to.

Amendment No. 59 is out of order.

Amendment No. 59 not moved.
Section 31, as amended, agreed to.
NEW SECTION

I move amendment No. 60:

In page 29, before section 32, to insert the following new section:

32.-(1) The Minister may appoint, for the purposes of assessing an amount of compensation for farm animals, animal products, animal feed or other thing relating to farm animals, such persons as valuers, if the Minister is satisfied that a person appointed has-

(a ) the requisite experience in valuing, or

(b ) knowledge of the value of,

farm animals, animal products, animal feed or other thing relating to farm animals having regard to criteria laid down in regulations under subsection (8) (if any).

(2) A valuer shall be furnished with a warrant of his or her appointment and, if requested by a person affected, the valuer shall produce the warrant, or other evidence that he or she is so appointed, for inspection.

(3) The owner or person in possession or control of a farm animal, animal product, animal feed or other thing relating to a farm animal, the subject of a claim for compensation and his or her employees, servants or agents shall give all assistance required and co-operate with a valuer or a person accompanying a valuer, during the valuation.

(4) Subject to subsection (6) or regulations under subsection (8), a valuer is independent in the performance of his or her functions.

(5) A second valuation shall be carried out by another valuer chosen in accordance with regulations under subsection (8).

(6) The Minister may issue guidelines relating to the valuation of a farm animal, animal product, animal feed or other thing relating to a farm animal and a valuer, or an arbitrator appointed under section 34, shall have regard to those guidelines (if any) when carrying out valuations.

(7) The killing, destruction or disposal of an animal, animal product, animal feed or other thing relating to a farm animal shall, in the interests of-

(a) disease control,

(b) minimising the risk of disease, or

(c) curtailing the spread of disease or a disease agent,

proceed, without delay, under the direction of an authorised officer notwithstanding that there might subsequently be a question of the determination of ownership or value of the animal, animal product, animal feed or thing or an issue relating to valuation and compensation in respect of it.

(8) The Minister may by regulations provide for any or all of the following:

(a) the method of assessing the value, subject to any limitation provided for under section 34, of a farm animal, animal product, animal feed other thing relating to a farm animal;

(b) historical reference periods on which to base the valuation of farm animals, animal products, animal feed or other things relating to farm animals, and different reference periods may be provided for farm animals, animal products, animal feeds or other things relating to farm animals generally or of farm animals, animal products, animal feed or other things relating to farm animals of a particular class or description;

(c) the manner of assessment of compensation;

(d) criteria to be taken into account in the assessment of compensation;

(e) the determination of compensation by agreement between the applicant and the Minister;

(f) the manner in which a valuer or arbitrator is chosen to act in a particular case whether agreement, by appointment by the applicant or the Minister, by lot, or by any other method that the Minister may prescribe in the regulations;

(g) the periods within which-

(i) an application for compensation must be made,

(ii) a valuation, or part of a valuation, process must be completed, and

(iii) a request for arbitration must be made;

(h) the consequences of failure to comply with a period set out in accordance with paragraph (g).

(9) Regulations under subsection (8) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations.

Amendment agreed to.
Amendment No. 61 not moved.
Section 32 deleted.
SECTION 33

I move amendment No. 62:

In page 31, line 12, to delete "arbitration" and substitute the following:

"an arbitration panel which includes a representative of the applicant and".

Amendment, by leave, withdrawn.

I move amendment No. 62a:

In page 31, line 12, to delete "by the Minister" and substitute "in accordance with regulations under section 32".

Amendment agreed to.
Section 33, as amended, agreed to.
Section 34 agreed to.
SECTION 35

Amendment No. 63 cannot be moved as it involves a potential charge to the Exchequer.

Amendment No. 63 not moved.

I move amendment No. 64:

In page 33, subsection (3), between lines 3 and 4, to insert the following:

"(d) shall inform the owner of the independent appeals process to the decision and the associated timeframe.".

Amendment, by leave, withdrawn.
Section 35 agreed to.
SECTION 36

I move amendment No. 65:

In page 34, between lines 14 and 15, to insert the following subsection:

"(5) All such regulations will be brought before the relevant committee of the House for discussion before being approved by the House.".

This amendment comes back to the question of the regulations and my belief that they should come before the relevant committees of the House for discussion. The argument the Minister made previously that he might have to introduce them in a hurry does not stand up when one reads the section, as the previous section states that they would only come into force after 21 days and would have to be approved by the House. As that means the House would have to be sitting after 21 days, they could not come into force in an emergency. Therefore, the reason given for not accepting the amendment does not stand up in this case.

I do not propose to accept the amendment for the reasons outlined in respect of consistency across government. There is a standard approval process around regulations that applies across Departments, including my Department. Whereas in the majority of cases, where appropriate, the Minister should appear before a committee to ensure we get regulations right, it should not be a requirement in primary legislation that they should do so.

Consistency is a sign of a sick mind. In a logical world we would get the whole Oireachtas to agree that no regulations would be introduced without first being discussed at the relevant committee, but we do not live in logical world. If I am waiting for that to happen on a global scale, given the lack of progress in Dáil reform, I will be left waiting. What is needed to change this procedure, therefore, is a courageous Minister to become the bridgehead of change and to accept that what has been common in the past should not be accepted, in light of what the Taoiseach said on the day the Government was formed, that there would be a new way of doing things in the House and that Ministers would be much more accountable to the Houses of the Oireachtas. The Minister could lead the way and I would hope all his colleagues would follow and that an omnibus arrangement by order of the House would come into place specifying that all regulations, under whatever legislation, would be discussed with the relevant committee before being signed off by the House. I ask the Minister to reflect on the issue between now and Report Stage. Perhaps on Report Stage he will be able to say the Government has made a decision that from now on there will be primary legislation to amend legislation to ensure all regulations come before committees of the House. If that happens, I will withdraw the amendment. Having been a Minister and having started a process of discussing regulations with the committee, my experience was that it was helpful and should be provided for in the legislation. That nobody else is doing it does not mean the Minister should not lead.

In response to the Deputy's first contribution on this issue, the regulations take effect immediately but they can be annulled within 21 days. To be clear on the actual definition of the laying of a regulation and orders, every regulation and order made under this Act, other than an order made under section 12 or regulation made under section 26, shall be laid before the Houses of the Oireachtas as soon as may be after it is made, and if a resolution annulling the regulation or order is passed by either House within the next 21 days on which that House sits after the regulation or order is laid before it, the regulation or order is annulled, but without prejudice to the validity of anything previously done thereunder. In other words, a Minister can pass a regulation and it can be introduced immediately. The Dáil can then choose to annul that regulation within 21 days. That is my understanding of how it works. If either House of the Oireachtas deems that to be a mistake it can annul it within 21 days.

A committee can convene to discuss the regulation at any time and make a recommendation to either House. Is that correct?

A meeting can convene?

Can a committee convene on foot of a regulation being brought in very quickly and, within that 21 day period, make a petition?

It can make a recommendation to either House of the Oireachtas to annul that. It would then, obviously, need to be passed by a majority.

I have some sympathy with Deputy Ó Cuív when he says we should try to make it a matter of course that a committee would be involved in discussing regulations. There are, however, times when the Minister needs to act quickly and may not have the luxury of getting the input of a committee before finalising a regulation. That is the issue.

I accept the point the Minister is making. He could, however, accept an amendment on Report Stage saying the regulation should be discussed by a committee in the 21 day period. I am a little surprised, however, by what he says. Section 26(3) states: "Where the Minister proposes to make regulations under this section, a draft of the regulation shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each House."

That is specifically for animal health levies.

That is where I made my initial proposal.

That exception is made within the context of section 26.

It was then that the Minister said we could not do what I propose, on time grounds. In the case of section 26, it can be done on time grounds. When discussing section 26, the Minister rejected my amendment because it might be necessary to bring in an emergency regulation. That is incorrect.

I accept that but because there is money involved in section 26, because it is levied, there is an exception. The actual definition applies here.

I accept that amendment No. 65 must be amended because of the wording, "All such regulations will be brought before the relevant committee of the House for discussion before being approved by the House". Perhaps the wording should be, "before being approved or annulled by the House". I do not know whether we annul or approve regulations when we bring them before the House. In the 21 day period I presume the House does the affirmative rather than the negative but perhaps I am wrong.

The process I outlined only takes place if there is an annulment of the regulation.

I thought regulations were always brought to the House.

They are. They are laid before the House but the approval process is normally a formality because it is often taken without debate.

I know that, but do we not still have a motion in the House?

Is that called approval of the regulation?

Yes. If there is an annulment then that is when the three week period kicks in. If there is a proposal for an annulment from either House that is when the period starts.

The Minister makes a regulation but before it is approved by the House it should be debated in committee. I think my amendment stands valid but the Minister disagrees with it. I am pressing it because I believe it is time we changed this practice. I know this is a hotchpotch way of doing things. I would much prefer it were done in an omnibus fashion, but we have to start somewhere. We have to form a bridgehead on this issue.

Amendment put and declared lost.

Section 36 agreed to.
SECTION 37

Amendments Nos. 66 and 68 are related and will be discussed together by agreement.

I move amendment No. 66:

In page 34, subsection (1), line 17, after “Minister” to insert “or an authorised officer of the Department”.

This, presumably, comes from the Deputy's experience as a Minister when he may not have been available to sign all the documentation to appoint an authorised officer. Subsection 37(3) states:

A person with whom the Minister enters into a service agreement under section 74 may for the purposes of enforcing this Act, appoint in writing, with the consent of the Minister, such persons as he or she considers appropriate to be authorised officers for the purpose of all or any of the functions that the person may exercise under the service agreement.

Deputy Ó Cuív is proposing that not only the Minister but someone authorised by the Minister could approve "such persons as he or she considers appropriate to be authorised officers", and so on. I am not sure of the thinking behind this proposal. It would be helpful to know it. I am not, necessarily, for or against the amendment. The recommendation is that I should not accept it, but I do not have strong feelings on it.

My view is that the only people the Minister should be able to authorise in his stead would be officials of the Department, and not anyone outside the Department. My understanding is that the Minister can appoint as authorised officers people involved in animal welfare, for example, who are not employees of the Department.

I understand that, now that the Deputy has clarified it, but that is not what the amendment says.

There may be a mistake in the draft.

The amended subsection would read:

A person with whom the Minister or an authorised officer of the Department enters into a service agreement under section 74 may for the purposes of enforcing this Act, appoint in writing, with the consent of the Minister, such persons as he or she considers appropriate to be authorised officers for the purpose of all or any of the functions that the person may exercise under the service agreement.

This suggests that the Minister or the authorised officer of the Department can enter into a service agreement with an appropriate person. I see what the Deputy is getting at.

There seems to be a flaw in the drafting of the amendment. Section 37(1) reads: "The Minister may for the purpose of enforcing this Act or an EU measure, appoint in writing, such persons or classes of person as he or she considers appropriate to be authorised officers for the exercise of all or any of the functions conferred on an authorised officer under this Act specified in the appointment."

The Deputy is proposing an amendment to line 34.

Given where the amended wording, by both amendments, would be placed, an authorised officer would be given the same status as the Minister, as opposed to the Minister making the appointment. It may be better to reconsider the amendment on Report Stage.

I will resubmit a corrected amendment.

Amendment, by leave, withdrawn.

I move amendment No. 67:

In page 34, between lines 21 and 22, to insert the following subsections:

“(2) The Minister will appoint an independent animal welfare officer to inspect all greyhound breeding establishments in order to ensure the following—

(a) hygiene standards are maintained and the greyhounds’ environment is protected,

(b) adequate food, medicine, equipment, and space is provided for the greyhounds, and

(c) access to essential facilities is provided to each greyhound.

(3) The Minister will appoint an independent animal welfare officer to monitor coursing clubs, gun clubs and fishery clubs whether privately, semi-State or publicly owned on an annual basis.”.

Amendment put and declared lost.

I move amendment No. 68:

In page 34, subsection (3), line 27, after “Minister” to insert “or an authorised officer of the Department”.

Amendment, by leave, withdrawn.

I move amendment No. 69:

In page 34, subsection (3), lines 29 to 32, to delete all words from and including “appoint” in line 29 down to and including “agreement.” in line 32 and substitute the following:

“submit the names of persons he or she considers appropriately qualified to be authorised officers for the purpose of all or any of the functions that the person may exercise under the service agreement to the Minister who may appoint in writing any or all such person to be authorised officers.”.

Amendment put and declared lost.

I move amendment No. 70:

In page 34, between lines 32 and 33, to insert the following subsection:

“(4) Persons may only be appointed authorised officers under subsections (1), (2) and (3) where they have satisfied the Minister or appointing authority that they have the experience, technical competence, and other qualifications to undertake the functions of an authorised officer.”.

Amendment put and declared lost.
Section 37 agreed to.
SECTION 38

I move amendment No. 71:

In page 35, subsection (1), line 21, to delete “may” and substitute “should”.

To be helpful, I believe this proposal may be a mistake. This provision pertains to the functions of an authorised officer and at present, the wording states "For the purposes of this Act or an EU measure an authorised officer may ... enter and inspect, at all reasonable times ... land or premises where he or she has reasonable grounds for believing that". This amendment proposes this should be changed to "an authorised officer should enter and inspect". That does not make sense in that one wishes to give them the option to do it rather than telling them they should be doing it. Clearly, entering a premises is a last resort and one would need to have very good reason to do that. Perhaps this amendment is not a mistake but it does not make too much sense to me.

I apologise but I was at the wrong amendment. That is okay and I will withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 72:

In page 37, between lines 15 and 16, to insert the following subsection:

“(5) The power conferred on an authorised officer under subsection (4)(a) and (b) may only be exercised by an inspector of the Minister.”.

Amendment put and declared lost.

I move amendment No. 73:

In page 37, between lines 26 and 27, to insert the following subsection:

“(7) The Minister will appoint an independent animal welfare official to inspect the conditions of fur farms on a regular basis to ensure the highest animal health and welfare standards are achieved in respects of the natural behaviour attributed to mink.”.

Amendment put and declared lost.
Section 38 agreed to.
Sections 39 to 41, inclusive, agreed to.
SECTION 42

I move amendment No. 74:

In page 39, subsection (1), line 13, to delete “Where an authorised officer” and substitute the following:

“Where an inspector, or an authorised officer on the advice of a veterinary practitioner,”.

Amendment put and declared lost.

I move amendment No. 75:

In page 39, subsection (1), line 13, to delete “authorised officer” and substitute the following:

“inspector, or an authorised officer on the advice of a veterinary practitioner”.

Amendment put and declared lost.

Amendments Nos. 76 and 77 are related and will be discussed together.

I move amendment No. 76:

In page 39, subsection (1)(b), line 18, to delete “as” substitute “or”.

Deputies Pringle and Ó Cuív have outlined a grammatical error which the Department also has picked up. The advice of the drafters is that substituting "or" for "as" is the best solution. I therefore have tabled this amendment and request Deputies Pringle and Ó Cuív to consider withdrawing amendment No. 77.

Amendment agreed to.
Amendment No. 77 not moved.
Section 42, as amended, agreed to.
Sections 43 and 44 agreed to.
SECTION 45

Amendments Nos. 78 and 79 are related and will be discussed together.

I move amendment No. 78:

In page 43, subsection (1), lines 43 and 44, to delete “on the sworn information” and substitute “by information on oath”.

These are minor changes to sections in Part 10, the first of which is purely grammatical. Amendment No. 79 to section 50 will allow for a printed copy of a record that is maintained in electronic form to be used in court. Second, it is to allow for the fact that some data may be kept in electronic form and to clarify that information kept in this way may be used as evidence in proceedings. People may ask what happens in the case of someone altering a computer record. The evidence of a copy could then be rebutted, for example, by producing an unaltered original. It is rather legalistic. The second of the two amendments being discussed together is to ensure one can get sworn statements from authorised officers and use them in court as evidence, rather than obliging officers to travel and attend all the hearings. I believe this proposal makes sense and I hope the Deputies will accept it.

Does anyone wish to comment on amendment No. 78?

It is very straightforward, in that the wrong language was used and the amendment will replace "on sworn information" with "by information on oath".

I presume that for those who have no religion, an oath is just an affirmation.

Yes, but the court system operates on the basis of people swearing on oath.

Personally, I believe that the sooner the court system takes the Bible out of the court, the better. I believe that for those who do not believe, it is an insult and for those who do believe, it is double the insult because more people seem to take the Bible into their hands and then swear the opposite. I must state my belief that a courtroom is no place for a Bible.

With respect, perhaps that is something we must take up with the Minister, Deputy Shatter. I am not sure whether I can deal with it in the Animal Health and Welfare Bill.

I do not expect the Minister to change it.

The Deputy's point is taken.

However, when one sees this provision in front of one, it shows how archaic are the Four Courts.

Amendment agreed to.
Section 45, as amended, agreed to.
Sections 46 to 48, inclusive, agreed to.
SECTION 49

I move amendment No. 78a:

In page 45, subsection (1), line 20, to delete “has reasonable grounds” and substitute “evidence”.

My basic point is there should be evidence rather than reasonable grounds in this section, which gives far too much power to fine people willy-nilly. I also indicated my intention to oppose this section and that Fianna Fáil would not allow on-the-spot fines at all. I acknowledge the idea was to take the process out of the courts and, to a point, so doing is very neat and handy. However, someone who was trigger-happy could fine one on what he or she considered to be reasonable grounds and then allow one to appeal to the courts. Consequently, it could work contrariwise to the intention of the Minister.

I acknowledge the Minister's intention is to remove this process entirely from the courts. That is fine in the case of speeding or parking offences, because there is a 99% certainty that the person concerned has parked illegally if one finds him or her parked on a double yellow line or without a parking ticket and so on. Similarly, in the case of a speed gun, it is not merely reasonable opinion but is a little stronger than that, as there is much evidence that the person concerned was speeding. In this case, however, the Bill proposes to allow on-the-spot fines on the basis of reasonable opinion, not evidence. As I noted, instead of taking the law out of this, a trigger-happy official could start firing out on-the-spot fines all over the place on the basis of his or her reasonable opinion while stating those who did not like it could go to court.

That is like telling someone who is refused planning permission in Galway to go to An Bord Pleanála. There is no chance there.

The idea behind this section is that, where possible, we should try to keep offences out of court, which is the same rationale behind the penalty points system whereby if people accept they are at fault and want to pay up and be done with it having learned their lesson, we should have a system that facilitates that. If somebody has mistreated an animal, either a domestic animal owner or a farmer, and he or she is called on by an authorised officer, that officer should have the power to issue a fixed payment notice, which would also give an instruction about what needs to be done to deal with the animal welfare issue. It will be positive for animal owners or farmers, in particular, to stay out of court and the fine of €250 will be a rap over the knuckles with an instruction to improve animal welfare and deal with the issue raised.

I have listened to the arguments and I do not understand why farming organisations have a problem with this. Would they rather that farmers or animal owners be taken to court for relatively minor animal welfare legislation breaches or a fixed penalty notice, which would not require a court hearing or result in a criminal record and all the stress and cost that brings? If I have, as the Deputy describes them, trigger happy authorised officers, I should remove them from the list because that is not the way they should behave. Authorised officers should be consistent, operate under a common code in terms of how they behave and interact with people they are encountering or inspecting. My understanding is that while an authorised officer visits a farm, for example, the Department issues the fixed payment notice. When an animal's welfare issue is prosecuted following a visit to a farm or a home owner, the officer must go back to the Department for a decision on the issuance of a fixed payment notice. People who are overly eager to dish out such notices or who want to flex their muscles should not be authorised officers and even if they are, they cannot issue notices on the spot. They need to return to the Department to seek sanction to issue a notice, which is a relatively small fine in addition to a notice requiring a change of practice.

The alternative is that authorised officers take people to court. That is the only option available to them and this is madness. It is the nuclear option every time where either nothing is done or people are taken to court. We are trying to arrive at a middle ground where when it is reasonable to say to a farmer that he or she should not do what he or she is doing or to say to an animal owner that what he or she is doing is unacceptable and he or she should pay €250, read the notice and conditions and we will leave it at that. Everybody can learn a lesson and move on. That is a sensible approach, which is being put in place to protect animal owners from being taken to court for oversights or for doing something that is not a significant breach of the legislation. In the same way many people are happy to accept penalty points for motoring offences rather than receiving a summons to appear in court, in most cases people would accept a fine under this section if they recognise they have something wrong and can move on from that. If they think they are being hard done by, they can go to court where they would have been taken anyway. I do not understand why people are so nervous about this measure, which offers an out of court settlement that both sides should welcome.

The Minister is making great play about people wondering about trigger happy authorised officers. I have witnessed trigger happy gardaí who have caught people. With something as black and white as speeding, it is like shooting fish in a barrel given the places they pick on a good wide road on a fine day to set up a speed trap. They catch enough people to fill their quota of fines. The notion that there are no trigger happy officials and there are processes in place to monitor them is belied by what everybody knows has been common practice to deal with something as simple as speeding because, traditionally, speed traps would not be found on bad bends on bad roads. That was something we changed when we were in government. When we brought in the legislation to provide for speed cameras, we said they had to be erected at known accident spots because the safest roads tended to have the most cameras.

The one major difference, however, regarding fixed penalties is they normally issue for clear black and white offences that require a physical measurement. For example, the parking of a car on double yellow line can be clearly identified. The latest speed cameras capture images of both the car and the driver, which means clear evidence can be shown to the driver and used by the garda. Speeding is a calculable offence. In other words, once the licence plate and driver are identified, the speed can be measured. Some motoring offences are prosecutable on the basis of reasonable opinion, for example, careless or dangerous driving which are not measurable. These offences are prosecuted in court and if the garda has a reasonable opinion that the motorist was driving carelessly, it is not considerable for an on-the-spot fine or penalty points and the only person competent to decide is a judge. All fixed penalties apply to measurable offences. Unfortunately, animal welfare breaches are not measurable in the same way and, therefore, there will be significant differences between strict authorised officers and less strict officers. The senior official cannot go to the farm to examine the issues and he or she will be faced with many reasonable opinions if he or she is to overturn the official's decision. At the very least, the section should be deleted because it has not been thought out. It is unprecedented to impose on-the-spot fines in matters of opinion rather than mathematical fact. In this case, the Minister should accept the amendment that provides there should be evidence at the very least.

It is not evidence until it goes to court.

Then the Minister should delete the section. Can the Minister imagine what would happen in this country if careless or dangerous driving offences were the subject of on-the-spot fines and motorists had to go to court to defend themselves? It would be outrageous.

I accept the Minister's detailed response to this because I also had concerns when I first saw it. The Minister has clearly set out his position on the matter.

A case may arise where an authorised officer seems to be coming back to his or her senior authority with more fines than others or seems to be more detailed and diligent than others in getting fines. Is there a system in the Department for checking whether somebody is trigger-happy? Some fines relate to a farmer having a lame sheep where it might take a day to realise that the sheep is lame. There should be a mechanism to address when somebody is being over-zealous and where it is pointed out to him or her that he or she is not taking all reasonable measures. Such a mechanism would give us peace of mind.

I have concerns about this as well. We spoke earlier about people being afraid to go to court because of the cost. If there is an allegation or suspicion that a person is committing an offence and he or she has a fixed fine or payment notice served upon him or her, he or she could find himself or herself under pressure to pay the fine or fixed payment rather than go through due process even though he or she believes himself or herself to be innocent. It will be undoubtedly viewed by sections of rural communities as a money-gathering exercise for local authorities.

I will make some comments because there is a misunderstanding regarding what we are trying to do. In order for an individual to get a fixed penalty notice, someone will have to carry out an inspection and go back to the local authority on reasonable grounds and a second authorised officer must approve that. Two people must be involved. Perhaps we can improve the wording but section 49(1) states that where an officer of the Minister, authorised by the Minister in that behalf or a local authority, authorised by the manager of the authority in that behalf, has reasonable grounds for believing that a person is committing or has committed an offence, he or she can serve a notice on that person. This is not just one person who is trigger-happy or over-zealous. It is a system that allows a person who has made an inspection and thinks there are reasonable grounds for sending a fixed penalty notice to offer somebody the option of just paying up and forgetting about it. According to section 49(1)(c), a person is not obliged to make the payment. If a farmer or pet owner decides that he or she has done nothing wrong and will not pay, he or she will not be taken to court for not paying. The onus would still be on the authorised officer, the Department or local authority to take that person to court, as they would or would not have done if this was not there. There is no downside to this for the owner. He or she is given the option to pay the fine, fix the problem and forget about it or do nothing and let the law take its course.

We put in this section to protect animal owners, not to improve enforcement. We can take someone to court if we have reasonable grounds for believing that he or she has been cruel to the animal or responsible for significant welfare issues. We can put the evidence before the court and it only becomes evidence when it is laid before the court. It is reasonable grounds when one is putting the case together. If the person feels it is not fair to ask him or her to pay up, he or she has the option of not paying. There is no offence involved in not paying. Not paying does not affect the subsequent court case if there is to be such a case. It is made clear here. Section 49(1)(d) states that "a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted." The question of whether one pays the money or not is irrelevant to the case if it is taken at a later stage. What it does stipulate is that if somebody gets a fixed penalty notice, he or she has the option to kill it there and then by paying up or doing nothing and when the fixed notice period ends, he or she can expect either to be taken to court or for the matter to be dropped.

The upside is for the person who committed the offence not the authorised officers. I can only think it due to a misunderstanding that people believe this to be some kind of charter for overly zealous inspectors to hand out on-the-spot fines. That is not what this was intended to do. Two people must make that decision and the decision to send out a fixed notice must be authorised in a local authority or in the Minister's office. It is then up to the person. If he or she feels that this is an unfair process, he or she can do nothing and let the law take its course. It does not cost him or her anything. He or she is not doing anything he or she would not otherwise have done under the current legislative structure whereby we take someone to court if we have reasonable grounds for believing he or she is committing an offence. We tried to introduce a system that would short-circuit us having to go to court, and bearing the cost of that, and keeping people out of court when they do not need to be there.

I understand that people might see this as a revenue-raising exercise but it is not. This is an option for people who have been caught out because they have been doing something that they should not have been doing. It allows them to deal with the problem speedily. Obviously, if they are caught a second and third time, the option may be to take them to court rather than giving them a fixed penalty notice. I find it difficult to understand why people are as suspicious as members seem to be about it.

The Minister says the option exists but it is weighted in so far as people will pay rather than go through the courts even though it is only an allegation. Deputy Ó Cúiv mentioned that other aspects of the law are black and white in that they are based on facts. Many cases relating to animal welfare come down to interpretation by the person observing. I am not casting aspersions on anybody but people making that interpretation and judgment as to whether to impose a fixed penalty payment might not understand what it is to be a member of a farming community with animals. If people pass a field in the middle of winter with snow on the ground and see animals there, some of them might interpret that as cruelty.

Authorised officers will not see that as cruelty. They must be trained.

The Minister is talking about somebody from a local authority or an officer acting on behalf of the Minister, a case of either or, not both.

I do not altogether agree with the Minister because authorised officers in this legislation can come from a wide variety of sources. Some people think human and animal comfort are the same thing and want one to build very enclosed sheds whereas if one puts the animals in the part of the world in which I live into a closed shed, they get pneumonia. They would survive better on a mountain than they would in a shed, particularly mountain sheep. I am sure the Chairman will testify to that. It is totally counter-intuitive but these animals thrive in conditions in which we would perish, while they would perish in conditions in which we thrive. When I first saw this and when the Minister's officials spoke about it, I thought it was a great idea that would save us all bother because it must be asked, who wants to go to court?

Unlike other on-the-spot fines relating to black and white issues that are easily determined, this is based on a reasonable opinion. The problem is that this situation is not static. An official might believe that a court case could not be won, yet he or she might guess that a person who received sensible advice would not appeal a fine of €250.

If someone who was aggrieved at receiving one of the fines in question approached me about appealing it-----

No appeal is required.

People will go to court to appeal.

No, that is not how it works. There is a misunderstanding. Under subsection (c), a person is not obliged to make the payment.

The only alternative to not paying is to go to court.

No. If a person does not pay it, the onus is on the local authority or my Department to take someone to court, as is currently the case.

If someone told me that he or she had been fined €250 and if I was aware of the process, I might tell the person to sit tight and see whether the authorities prosecute. Most people who did not get good technical advice would believe that solicitors would not defend their cases for less than €1,000, and that would even be before they passed through the court door. People might as well stump up and shut up instead of paying more in legal fees than is outstanding in the fine. The wise approach would be to advise a person to wait to see if a summons is issued.

The alternative is that someone will receive a summons in the post to appear in court.

The reality is-----

Surely it is better to give people an option to-----

No. In many cases, people will be fined on the spot through reasonable grounds while the Department will know not to go to court because it does not have sufficient evidence. Therefore, the risk of going to court is thrown from the Department onto the person. This is the problem.

I do not believe so. It offers an out for the individual that is not in place currently. Farms will not be visited by authorised officers who are inexperienced in dealing with farm situations. We will put service agreements in place with authorised officers. The issue of service agreements is outlined at the top of page 62.

If we are to have non-veterinary staff as authorised officers, and unless they are trained and have experience in the area - many of the current inspectors are not vets-----

This covers the-----

Farms will continue to be visited by the same type of people.

Are people in urban situations not covered as well?

If we are to take on extra people from the Dogs Trust or the Irish Society for the Prevention of Cruelty to Animals, ISPCA, and make them authorised officers, I must be satisfied that they are appropriate for the job under the service agreement. Using the pool of people who have experience in preventing animal cruelty and in managing same will be useful in an urban environment. However, this is not the intention in terms of agricultural holdings. We have debated this issue previously. To my mind, providing a farmer or someone else with an alternative to court is a protective measure for the individual, in that it would keep him or her out of court, and is not meant to be used as an excuse to dish out numerous fines to make money.

No one put that to-----

The accusation was that it might be a money-making exercise for local authorities.

We will not have a meeting of minds. Forgive my input as Chairman, but I am mindful of a cross-departmental issue. We are trying to get agreement on deeming environmental wardens, dog wardens and park rangers as authorised officers. I am sure that it is the case in many areas, but we have a serious problem concerning dogs on the hills in that they are brought onto open mountains by casual walkers and are causing carnage. Neither a park ranger nor a dog warden can be an authorised officer. There is a blatant disregard for animal welfare. If the person identified as the animal's owner was required to pay an on-the-spot fine, he or she might be deterred. Signs are fine, but this measure would be helpful. It goes beyond farmers. Indeed, it protects farmers.

Until they are summonsed.

The summons route could be taken, but an on-the-spot fine is sometimes enough to deter people.

The Deputy knows what it is like in my Department. We spend our time in court dealing with fishing issues in particular. We can provide something that makes sense for both sides. We are discussing summary fines for relatively minor offences that are clear breaches of the law. Instead of going to court, we will give someone an option to pay a fine. If he or she decides not to pay it in the belief that it is unfair and is happy to defend a case, matters will proceed as is currently the case.

They might not. The idea that all officers-----

The rules must be enforced.

I have worked in various Departments and have witnessed considerably different attitudes among officers. Some are more practical than others, to put it bluntly. The idea that they are suddenly of a uniform disposition is like believing that all police officers are of a uniform disposition when it comes to enforcing.

More than one officer is required to make the decision.

To take the Chairman's point, if this legislation called for an on-the-spot fine for walking an unleashed dog, I would say, "Good on it". It is a definable offence. One could take a photograph of the person to prove the point. The problem is that we are discussing new territory. What would happen if we decided that careless or dangerous driving was to receive an on-the-spot fine? Current fines relate to whether people wear seat belts, speeding, etc. These are "Yes" or "No", black or white issues. I am opposing the section.

Members are misreading the amendment. It is a positive measure. We should proceed with giving people the option of avoiding a summons by paying a fine for a relatively minor and measurable offence. This Bill puts all of the offences down on paper.

How stands the amendment?

I am pressing it.

As less than the full complement of members is present, we are obliged to wait for eight minutes or until such time as the full membership is present before proceeding with the division.

Amendment put:
The Committee divided: Tá, 2; Níl, 7.

  • Ferris, Martin.
  • Ó Cuív, Éamon.

Níl

  • Barry, Tom.
  • Coveney, Simon.
  • Deering, Pat.
  • Doyle, Andrew.
  • Heydon, Martin.
  • Keaveney, Colm.
  • McNamara, Michael.
Amendment declared lost.
Section 49 agreed to.
SECTION 50

I move amendment No. 79:

In page 47, between lines 5 and 6, to insert the following subsection:

“(5) In proceedings under this Act, evidence of information contained in a record may be given by producing a copy in legible form of that record, whether that record is maintained in legible or non-legible form and the copy is, until the contrary is shown, sufficient evidence of the information contained in the record.”.

Amendment agreed to.
Section 50, as amended, agreed to.
SECTION 51

Amendments No. 80 to 88, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 80:

In page 47, subsection (1)(a), line 11, to delete "a copy" and substitute "the notice".

I am sure there is a drafting explanation of why a person does not get the notice but rather a copy of the notice.

All these amendments seek to provide that instead of a copy of a notice being given to an animal keeper, the original notice would be given. The standard legal form of words that occurs throughout legislation in Ireland and elsewhere is as section 51 is currently drafted. I am advised that an original is merely an original copy, so the term "copy" includes an original.

Amendment, by leave, withdrawn.
Amendments Nos. 81 to 88, inclusive, not moved.
Section 51 agreed to.
SECTION 52

I move amendment No. 89:

In page 48, subsection (2), line 15, to delete “16(4)” and substitute “16(3)”.

Amendment agreed to.

I move amendment No. 89a:

In page 48, subsection (2), line 15, to delete “23(5)” and substitute “23(6)”.

Amendment agreed to.
Section 52, as amended, agreed to.
Sections 53 and 54 agreed to.
SECTION 55

I move amendment No. 89b:

In page 49, subsection (1), line 2, to delete “may be so prosecuted”.

This is a technical amendment and does not change the meaning. I propose to delete the words "may be so prosecuted" as I have been told that it is not necessary to include those words in the line.

Amendment agreed to.

Amendments Nos. 90, 90a and 90b are related. Amendment No. 90a is an alternative to amendment No. 90. Amendments Nos. 90, 90a and 90b will be discussed together by agreement.

I move amendment No. 90:

In page 49, subsection (2), line 11, to delete “12 months” and substitute “two years”.

Clearly the Deputies are trying to extend the time period from 12 months, to two years in the case of Deputy Ó Cuív and three years in the case of Deputy Martin Ferris. I am happy to stick with 12 months.

Does Deputy Ferris wish to discuss his amendment?

Amendment, by leave, withdrawn.

I move amendment No. 90a:

In page 49, subsection (2), line 11, to delete “12 months” and substitute “3 years”.

Amendment, by leave, withdrawn.

I move amendment No. 90b:

In page 49, subsection (2), line 11, after “offence” to insert the following:

“or within 12 months of the prosecutor being satisfied that there is evidence to justify a prosecution”.

Amendment put and declared lost.
Section 55, as amended, agreed to.
Sections 56 and 57 agreed to.
SECTION 58

I move amendment No. 91:

In page 51, subsection (1), line 3, to delete “section 52(1),” and substitute “section 52(1)”.

The amendment literally just takes out a comma. It is a non-issue but it is a technical amendment.

Amendment agreed to.
Section 58, as amended, agreed to.
Sections 59 to 62, inclusive, agreed to.
Amendments Nos. 92 and 93 not moved.
Section 63 agreed to.
Sections 64 to 67, inclusive, agreed to.
Amendment No. 94 not moved.
Section 68 agreed to.
Sections 69 to 72, inclusive, agreed to.
SECTION 73

I move amendment No. 94a:

In page 61, subsection (2), line 34, after “subsection (1)” to insert the following:

“but may not exceed the cost of providing the service, estimated by the Minister, to which the fee relates”.

I hope that people will welcome my amendment. At the outset I want to make it clear that there is no intention to introduce new fees in this legislation. The basic idea of the section is to ensure that any new Minister may only introduce new fees that are clearly linked to a service that is being provided. It is not intended that fees would be onerous or yield any form of profit. Therefore, to address concerns raised by some Deputies I have introduced the amendment which further ensures any fees a future Minister might introduce can be at a rate no higher than the cost of the service linked to the fee. It safeguards to prevent people making money out of fees.

I tabled my opposition to the section to make the point that the Minister has dealt with. I accept he has dealt with the issue in good faith and I accept his amendment on that basis. I welcome the amendment as it gives great reassurance to people.

Amendment agreed to.
Section 73, as amended, agreed to.
Sections 74 to 76, inclusive, agreed to.

Amendments Nos. 95 to 97, inclusive, tabled by Deputy Pringle have been ruled out of order.

Amendments Nos. 95 to 102, inclusive, not moved.
Amendments Nos. 98 to 102, inclusive, not moved.
Schedule 1 agreed to.
SCHEDULE 2

Amendments Nos. 103 and 104 are related and may be discussed together by agreement.

I move amendment No. 103:

In page 67, line 16, to delete “postular” and substitute “pustular”.

The amendment adds two new diseases to the list. Varroa, a disease found in bees, had been inadvertently omitted and I do not want to leave bees out of the legislation. My amendment is more than a technical addition because it adds diseases that should have been included in the first place.

Amendment agreed to.

I move amendment No. 104:

In page 68, between lines 30 and 31, to insert the following:

“85. Varroasis in bees”.

Amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
SCHEDULE 4

Amendments Nos. 105 to 111, inclusive, are related and will be discussed together by agreement.

I move amendment No. 105:

In page 75, between lines 26 and 27, to insert the following:

14.

Bovine Tuberculosis (Attestation of the State and General Provisions) (Amendment) Order 1996 (S.I. No. 85 of 1996)

15.

Brucellosis in Cattle (General Provisions) (Amendment) Order 1996 (S.I. No. 86 of 1996)

”.

Amendments Nos. 105 to 111, inclusive, are a series of corrections to the list of statutory instruments being carried forward under the Bill. In some cases a statutory instrument that was in force when the Bill commenced has been replaced. The conscious choice was made, when drafting the Bill, to specify what statutory instruments under the Diseases of Animals Act 1966 were being continued into force. The approach provides for greater clarity than the alternative wide approach of simply stating that all existing statutory instruments are retained as if made under the new legislation. My amendments just update the legislation since the original draft was made quite some time ago.

Amendment agreed to.

I move amendment No. 106:

In page 75, between lines 27 and 28, to insert the following:

15.

Brucellosis in Cattle (General Provisions) (Amendment) Order 1998 (S.I. No. 39 of 1998)

”.

Amendment agreed to.

I move amendment No. 107:

In page 75, to delete lines 32 and 33.

Amendment agreed to.

I move amendment No. 108:

In page 75, between lines 35 and 36, to insert the following:

19.

Bovine Tuberculosis (Attestation of the State and General Provisions) (Amendment) Order 2000 (S.I. No. 161 of 2000)

”.

Amendment agreed to.

I move amendment No. 109:

In page 75, between lines 44 and 45, to insert the following:

23.

Brucellosis in Cattle (General Provisions) (Amendment) Order 2002 (S.I. No. 415 of 2002)

”.

Amendment agreed to.

I move amendment No. 110:

In page 76, between lines 29 and 30, to insert the following:

40.

Brucellosis in Cattle (General Provisions) (Amendment) Order 2009 (S.I. No. 357 of 2009)

”.

Amendment agreed to.

I move amendment No. 111:

In page 76, between lines 37 and 38, to insert the following:

44.

Bovine Tuberculosis (Attestation of the State and General Provisions) (Amendment) Order 2010 (S.I. No. 307 of 2010)

”.

Amendment agreed to.
Schedule 4, as amended, agreed to.
Title agreed to.

I thank the Minister, his officials and the members of the committee for their endurance and constructive co-operation in a well thought-out and politely argued debate on the Bill.

Bill reported with amendments.
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