Amendments Nos. 1 and 8 are to be taken together by agreement.
Agriculture Appeals Bill, 2001 [Seanad]: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (1), between lines 14 and 15, to insert the following definition:
" 'Civil Service' means the Civil Service of the Government and the Civil Service of the State;".
The purpose of these amendments is to relocate the definition of Civil Service from section 2 to section 1. It now relates to sections 2 and 3. Therefore the definition should be part of section 1. This is merely to tidy the Bill.
Amendment agreed to.
Amendments Nos. 2 and 3 are consequential on No. 15. Amendment No. 16 is an alternative to No. 15 and No. 19 is related. Amendments Nos. 2, 3, 15, 16 and 19 are to be taken together by agreement.
I move amendment No. 2:
In page 3, subsection 2(b), line 27, to delete “and”.
Amendments Nos. 2 and 3 are necessary because of the insertion of the new section to make provision for an appeal system for dealers. The new section makes reference to statutory instruments, therefore we must define a statutory instrument in section 1. That is the purpose of amendments Nos. 2 and 3.
In the debate in the Dáil on 8 March last on the Disease of Animals (Amendment) Bill, 2001, the Minister gave an undertaking that he would make a provision in the Agriculture Appeals Bill, 2001, for an appeals system for dealers. A new section is proposed to do that. The text of the proposed new section is contained in amendment No. 15. Deputies Dukes and Connaughton have put forward a similar text in amendment No. 16. The difference between the two is small and I would venture to say that the proposed draft is somewhat tidier than the one put forward by the Deputies. The effect of both amendments is the same. I expect the Deputies will have no difficulty in accepting amendment No. 15 over amendment No. 16.
If a person is notified by the Minister that he or she is being refused registration as a dealer, their registration has been revoked, or the authorisation of a dealer's premises is being refused or revoked, then that person has the right under the Diseases of Animals Acts, 1966 to 2001, to make representations to the Minister before the Minister decides whether to proceed with the proposal.
Amendment No. 16 is an alternative to No. 15. They intend to do exactly the same thing. The drafting of amendment No. 15 is much more elegant than that of amendment No. 16. I will withdraw amendment No. 16.
Amendment No. 19 proposes to add to the Schedule the registration of dealers and their premises. If we insert a new section 14 setting down the procedures for an appeals system for dealers and their premises, there is no need to list the registration of dealers and their premises in the Schedule. It serves no useful purpose. I cannot, therefore, accept amendmentNo. 19.
Amendment agreed to.
I move amendment No. 3:
In page 3, subsection (2)(c), line 30, to delete “Act.” and substitute the following:
"Act, and
(d) a reference to a statutory instrument shall be construed as a reference to that instrument as amended, adopted or extended by any subsequent statutory instrument.”.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
Amendments Nos. 4 and 5 have been ruled out of order as they involve a potential charge on the Exchequer.
Amendments Nos. 4 and 5 not moved.
Amendment No. 9 is related to amendment No. 6 and they may be taken together by agreement.
The Chairman has ruled amendment No. 4 out of order on the grounds that it imposes a charge on the Exchequer. I contest that because the amendment would not necessarily give rise to expenditure beyond the provisions of the Bill. It seeks materially to do the same thing that the Bill proposes. The effect of it is that the mechanism that would be set in place would be independent, not only in appearance but of the rest of the machinery of Government. I do not believe that it requires extra expenditure on that grounds. I would like to know what the basis is for the claim that this would involve an extra charge on the Exchequer. I do not think it is good enough that——
Amendment No. 4 in the names of Deputies Dukes and Connaughton seeks to establish an appeals board which would review, on appeal, decisions taken by departmental officials in connection with the various schemes administered by the Department. The Bill currently provides for an appeals process based in the Department. In essence, the amendment, therefore, seeks to establish an independent appeals body. Such a body would require Exchequer funding to meet this operational cost. The amendment, therefore, involves a potential charge on the Revenue and must be disallowed in accordance with Standing Order 142(3). Given that amendment No. 20 is consequential on amendment No. 4, it too falls.
I am sorry to be in disagreement with the Chair, but I do not accept that the proposal in amendment No. 4 would involve extra expenditure. We are providing that the same job would be done as is provided for in the Bill. We are simply providing that the people who do that job would belong to an agency that would be independent of the Department of Agriculture, Food and Rural Development rather than one that would be part of it. They would do the same job. It would involve the use of exactly the same resources. The agency would simply have a legal existence independent of the Department. I do not accept that this amendment necessarily involves extra expenditure. There is no logic in the claim. There is no basis for it. I am not prepared to accept a bald assertion from the Chair that this involves extra expenditure. This illustrates yet again that we need to have an independent source of advice for the Oireachtas, which we do not seem to have at present. I do not accept that the proposal in this amendment would require extra expenditure.
I received today, as have all other Members of the House, the annual report for 2000 of the Social Welfare Appeals Office. The Minister for Agriculture, Food and Rural Development proposes that the appeals mechanism set out in the Bill will be modelled on the procedure used in the Social Welfare Appeals Office. That is not a separate body. It is not constituted separately from the Department of Social Community and Family Affairs, but it might as well be. This is an excellent report and the mechanism in place there should be a model for the way this process will be carried out in the Department of Agriculture, Food and Rural Development - as far as I know that is the Minister's intention. The office is an entity that functions in accordance with certain principles. It has a staff, a very elaborate system of exchange of information, exchange of experience, meetings of appeals officers to ensure consistent approaches to cases and so on. It is a very satisfactory mechanism and it operates as if it were separate from the Department.
I cannot see that the simple procedure of making this office independent constitutes a requirement for an increase in expenditure over and above what is proposed in the Bill. I do not accept that amendment No. 4 is out of order. I do not know what procedure there is for arbitrating on a matter such as this. The Chair asserts that this amendment is out of order because acceptance of it would require extra expenditure, but I assert that because it would result in exactly the same job being done, as is proposed in the Bill, and would have a separate identity, it would not involve extra expenditure. I do not know what system there is for arbitrating on that difference.
The Deputy can ask the Ceann Comhairle, if he wishes. That is the only alternative.
Certain points were made by Deputy Dukes on this matter. Perhaps the Chair will allow me to reply briefly to the points he made, and that does not mean I do not accept his ruling. I am amazed at Deputy Dukes. He used the Social Welfare Appeals Office as a template. We are setting up the same template here, but he will not accept it. It is the same template with one addition that was announced in the my reply to Second Stage. While social welfare appeals officers are drawn from the Department of Social, Community and Family Affairs, we will be able to draw from the wider Civil Service body for the appointment of appeals officers to this body. If the system works so well for the Department of Social, Community and Family Affairs, and we are always being told, "if it ain't broken, don't fix it", I cannot understand why the same template being used here is being criticised by the Deputy or why he believes quality civil servants operating this system in the Department of Agriculture, Food and Rural Development will not act in the same way as the top quality civil servants operating a similar system in the Department of Social, Community and Family Affairs. I agree with the Deputy that the model of operation of the Social Welfare Appeals Office is one of which we can all be proud. I believe we would be equally proud of the same model operating in the appeals office of the Department of Agriculture, Food and Rural Development. I cannot understand why that cannot be accepted.
I hope I can allay the Minister of State's astonishment.
(Interruptions.)
If it were appropriate to this committee I would do so, but it is not. I am utterly convinced that the same logic would be applied to the body we propose to set up as is applied to the Social Welfare Appeals Office. That office functions in every way as a body that is separate from the Department and that should be the case. I agree that the same treatment should apply to the two offices. The next stage in the evolution of the social welfare appeals office is to make it formally and statutorily independent of the Department of Social, Community and Family Affairs. Now that we have the opportunity to do it in the case of agriculture, we should apply to the Department of Social, Community and Family Affairs the system which we are applying to the Department of Agriculture, Food and Rural Development.
Chairman, on your invitation to me to discuss the matter with the Ceann Comhairle, I will do that, if necessary. If, however, the Ceann Comhairle's office will make the same bald assertion to me without any analysis of what I am proposing, I would not be disposed to accept that either. I cannot understand the logic of telling me that my proposal, that the same job as is proposed in the Bill be done independently of the Department, will cost more. I do not accept that for a moment.
Neither do I accept that we should draw staff only from the Civil Service for this. I have tabled an amendment to deal with that, amendment No. 7, which would give the Minister for Agriculture, Food and Rural Development the liberty to take people from places other the Civil Service to do the job which is required here. I do not accept the view, which is only an assertion, that the way I am proposing that this be done would necessarily involve an increase in costs.
There is a Standing Order which states that an amendment to a Bill which could have the effect of imposing or increasing the charge upon the Revenue may not be moved by any Member, save a member of the Government or a Minister of State.
I must accept that but I can only say that it is entirely unsatisfactory. That is a bald assertion by the bureaucracy of this House which is not based on any analysis of the proposal. It is far too easy a way to attempt to circumscribe the Opposition in making constructive proposals for a Bill which, in general, I support. I regret that that particular course of action is being adopted here. I am not blaming the Minister for it but I do not accept a bald assertion made without any analysis by the bureaucracy of this House that an amendment is out of order for that reason.
It looks like we have no alternative but to accept the ruling. I have seen this mechanism used previously. This is no reflection on you, Chairman. When you talk about a cost to the Exchequer, you can rest assured that somebody will have to be paid to do the work which would have been done by the civil servant if he or she were not on the appeals board. Therefore, there is no question of this imposing an extra cost on the Exchequer. This is a mechanism which has been used over the years to prevent the Opposition from making such proposals.
The major flaw with this Bill is that the vast majority of farmers will not view the appeals board as being an independent body. Whether they are right or wrong is another question. The reason they feel that way is they think it is the police policing the police. However, we must accept your ruling.
Amendment No. 5 in the name of Deputy Penrose is also out of order as it involves a potential charge on the Revenue. Amendment No. 9 is related to amendment No. 6. Amendments Nos. 6 and 9 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 6:
In page 4, subsection (1), line 2, after "or" to insert ", following selection at competitions held by the Civil Service and Local Appointments Commissioners,".
Amendment agreed to.
Amendment No. 7 in the name of Deputies Dukes and Connaughton is out of order as it involves a potential charge on the Revenue.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 4, lines 5 and 6, to delete subsection (2).
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 9:
In page 4, to delete line 7 and substitute "The Minister shall, following selection at a competition held by the Committee on Top Level Appointments in the Civil Service or the Civil Service and Local Appointments Commissioners, appoint a person holding a position within the Civil Service".
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That section 7 be deleted."
I oppose this section. If the Minister wants to confer additional functions on the director, he should come before the House with amending legislation. It is not appropriate to do this by order.
I agree.
Is the Minister of State saying that he agrees to remove the section from the Bill?
Yes.
Question put and agreed to.
SECTION 8.
I move amendment No. 10:
In page 4, subsection (4), lines 37 to 39, to delete all words from and including "as" where it firstly occurs in line 37, down to and including "Minister" in line 39 and substitute "within 8 weeks".
This was discussed at some length on Second Stage, where the Minister indicated that it was his intention that matters which were bought before the director subject to appeal would be decided within a reasonable time frame. The record of the debate will bear me out. The Minister regarded 12 weeks as being possibly a reasonable time frame and a good number of those who spoke on Second Stage took the view that 12 weeks was rather a long time.
The Bill deals here with a wide range of issues. To date, there are 37 lines of text in the Schedule setting out the matters which can be subject to appeals, and I agree with all of them. I wanted to add another, that is, the disease eradication schemes, and I accept that one does not need to add the dealers. These are all very important schemes from an economic point of view.
I want to give one example of where there is not yet an appeals process but where there will be one in future. The case, which I will not identify by name, is the result of an error in the making of an application for beef premiums, where a particular farmer may be deprived of a sum of about £9,000. This relates to a batch of animals purchased in February 2000 which was sold about a year later. Normally they would have been sold earlier but we all know that there were a series of difficulties as a result of the foot and mouth disease crisis. That individual concerned is now being told that the danger is that the penalty which will be applied to him regarding an error over one animal will be that he will get no payment whatsoever for that particular group of animals under the scheme for this year. This involves a loss of £9,000. By the time that is resolved a period of considerably more than 12 weeks would have elapsed. The situation is so worrying for the individual in question he has told me that if he is deprived of the payment this year he will get out of beef production. That will be a big change for him.
Matters of that importance should not take up to 12 weeks to decide and it is not good enough to pass a Bill providing for an appeals mechanism that would not set targets for these matters to be resolved. Members on all sides of the House are familiar with cases where it has taken much longer than 12 weeks to resolve issues that have to deal with very important economic matters on farms. For that reason Deputy Connaughton and I propose that the matters should be resolved within eight weeks, which is two months. A period of 12 weeks is far too long, even as a vague target. A period of eight weeks is already long enough when we are dealing with these kinds of schemes. I ask the Minister of State to agree to the inclusion of this specification in the Bill.
I accept what the amendment is trying to achieve. In any Department where I have been a Minister I have always placed great emphasis on speedy and fair answers. Part of being fair is to be speedy. However, to impose a fixed time statutory requirement could create severe difficulties. I have had considerable experience in dealing with social welfare appeals on behalf of constituents and it is apparent to me that delays can be a two way factor. Sometimes people are slow in responding where more information is required. Sometimes at oral hearings the appeals officers has given further opportunity to appellants to get additional documentation to support their case. To impose a time limit on appeals runs the risk of not giving appellants a full and fair chance to make their case. In view of this the best option is to proceed in the way proposed. Guidelines will be made by the Minister which will seek to get decisions made as fast as possible but which would not tie the hands of the appeals section in making decisions within a fixed time scale if it was thought it would be in the appellant's interest not to give more time. In many cases that is what happens.
We must also take into account the question of oral appeals. That is a matter of getting suitable dates, not only for those engaged in appeals who may be far removed from the centre but for the appeals office. The imposition of an absolute legal deadline could prejudice the ability of the appellant to get a full and fair hearing. While I accept the objective of the amendment, if it was put into effect many would complain that they did not get a proper chance to have their appeal fairly considered. On that basis I must oppose it.
I am disappointed with the Minister of State's response. I would have considered him to be in favour of deadlines. Acceptance of this amendment would create severe difficulties for the Department but in the absence of it, the difficulties lie with those in the farming community who may have to wait four, five or six months to have their appeal considered. I could instance numerous cases where appeals took five, six, eight and even 12 months.
It is very important that justice is done and is seen to be done. If a person believes that a wrong has been done and his money - say £7,000 or £8,000 - is held in the balance for those periods of time it is in his interest to attend his appeal when the date is fixed. I have an open mind as to whether the stipulated period should be eight or 12 months if there was a certainty that an appeal would be held within 12 months. In the absence of this provision the appeals officers will find good reason not to meet the appellants. This kind of thing has happened many times previously. Under the current system if the local livestock office cannot approve a grant it goes to a higher official. That was supposed to have been completed within a couple of weeks but it takes several months.
It would be a monumental mistake not to impose an upper limit, even if it is longer than the eight weeks we prefer. Provision could be made for the seeking of further information by either person. Otherwise an open ended provision will result in huge delays, despite the best efforts of the Minister of State.
We all welcome the Bill. It is good that at long last an independent appeals mechanism is to be put in place. Unfortunate farmers have suffered for what are often small irregularities, such as the wrong tick on an application form. There is no problem if a departmental official makes a mistake - it can often take constituents 12 months to secure planning permission because of mistakes made by officials - but there will be if a farmer makes one. If the correct documentation is in place, there should be a provision to ensure that appeals are processed as quickly as possible. There is a concern that in the absence of a time limit, difficult as it is to impose one, there will be a delay in considering appeals.
I am sympathetic to the thrust of the amendment, which is that appellants should have early determinations. The period of eight weeks seems reasonable. In the planning process there must be a decision within eight weeks. For example, if a planning office requires further information the clock begins to tick again for a further two months from the time the information is received. The Minister was thinking of the appellant's interest when he responded. However, there is a provision in planning law for an applicant to be given an extension of time if he or she requests it. An applicant may write to the planning office and ask that a decision be deferred for a suitable period of time. A similar device could be included in this legislation if the Minister's only concern is with the interest of the appellant.
I, too, support this amendment. Farmers are the victims of serious injustices by the Department of Agriculture, Food and Rural Development when they make frivolous mistakes. To err is human and to forgive is divine. I know many farmers in west Cork who, when they inquire at the local area aid office to know if their applications have been received, are told that no applications have been recorded. The farmer is then requested to provide a postal receipt. He or she must send an original receipt as proof of postage. A photocopy will not be accepted. He or she is also requested to send a photocopy of the original document and then, lo and behold, the Department accepts the application. However, the Department does not issue a letter of apology to the misfortunate farmer who would have been at the loss of thousands of pounds if he or she had not been able to provide a postal receipt and a photocopy of the application document.
The amendment tabled by Deputies Dukes and Connaughton is correct. Eight weeks is a long time for a farmer who is awaiting the payment of a headage grant to pay bills. It butters no bread to wait for 13, 16 or even 26 weeks before the matter is settled. It must be possible for the Minister and the Department to create a modus operandi to expedite decisions on appeals. The amendment is reasonable and the Minister should accept it in good faith and good fashion.
First, let us deal with the actual amendment and I will then deal with the points raised by the Deputies.
The amendment is an absolute. Every decision would have to be given within eight weeks and no exceptions would be possible. For example, a person might have lodged an appeal but might not be able to deal with it because he or she is ill in hospital and might want an oral hearing. This amendment would slam the door on such a person because it requires that if the matter cannot be dealt with in eight weeks a decision must be given. Similarly, a person might have difficulty in accessing documentation within the eight week period. What is proposed in the amendment is unworkable. It would prejudice the right of the appellant.
The points raised by Deputies are valid. I have spoken many times in frustration about An Bord Pleanála, which can take up to two years to make decisions. That is unacceptable. A number of things must be made to happen. First emphasis should be on getting the first decision right so that people do not have to appeal. Second, penalties should be in proportion to the problem. I accept these points.
The system should be simplified so that fewer errors occur. A parliamentary question touched on this problem today. As Minister of State I was aware of a situation where people who apply for REPS forget to send a form or some confusion arises with the planners. This is the easiest thing in the world to happen. We have now put in place a red letter warning system so that when an application is two or three days overdue the person will be warned that he or she will be penalised at a rate of 1% per day and that the penalty will be 100% if the application is not received by a certain date. My experience is that most people will accept a 2% or 3% penalty if they are a few days late but they do not find it easy to accept a 100% penalty. Much can be done before the appeals stage. An appeal should be the last resort and would not be necessary in an ideal world.
Two principles should inform the operation of the appeals system. First, as favourable a decision as possible should be given, within the law. This is a good rule of bureaucracy. Second, the decision should be given as speedily as possible. When I became Minister of State I was faced with a number of queries in relation to the REP scheme, which fell to my responsibility on a day to day basis. We discussed many of these issues because appeals come directly under the Department. I have suggested pre-skimming appeals to see if a case of any substance has been made. If it has not, I have suggested writing to the applicant to say the appeal lodged is not relevant to the penalty and unless certain conditions can be found the appeal will not be accepted. In this way the applicant is not kept waiting an inordinate length of time. If the appeal is to be granted the applicant should be told that promptly. In the meantime, we have speeded up the process considerably. At one time every appeal on REPS required a farm visit. We have now decided this is not necessary and the process has been speeded up, despite the problem of foot and mouth disease which did not make things easier but which has now been solved.
There will be a huge onus on the director to make sure there is an efficient mechanism for dealing with appeals. However, to tie his hands absolutely to a time limit when it could be in the appellant's interest to have a longer time would be wrong. I have come across many situations when I acted on behalf of appellants and was very glad of the flexibility on time because some of them were very slow in asking me to acquire information. If a time limit was to be imposed a very complicated situation would have to be put in place.
The director's objective will be to provide a good and efficient service. When the guidelines are being drawn up they will require the director to ensure decisions are given speedily where it is in the appellant's interest and that discretion in using extra time is used when it is in the appellant's interest to do so. I am confident we will have an efficient office and director and on that basis the question of time limits should be left to the director's discretion.
I thank the Minister of State for that response. I understand what he is getting at. However, I have never seen an appeal system which did not take much longer than intended. The Minister of State has referred to An Bord Pleanála. We have had numerous debates in the House and have even legislated in an attempt to bring the workings of that board into reasonable proportions and we have not succeeded. I know the Minister of State recognises that.
I also take the Minister of State's point that there will be circumstances in which an absolute target such as this might result in restricting the rights of an appellant in circumstances such as he mentioned. Nevertheless, I am not inclined to give the administration the kind of leeway it would enjoy if it had an unspecified delay. The Minister said, on Second Stage, that the turn-around period he had in mind was 12 weeks. This is almost three months, a quarter of a year and half a growing season. It is a long time, given the schemes about which we are talking. I would be interested to see if the Minister could bring forward a scheme that would maintain the right and the interests of the appellant while taking account of the various difficulties that can arise, but that would still propose a deadline. Perhaps the Minister will come back on Report Stage with an amendment that provides for a turn-around time of 12 weeks and he will show us, either in text added to the Bill or in the terms of the guidelines, that in accordance with subsection (4) of section 8 there will be reasonable procedures that would allow for cases where the appellant had some difficulty in presenting himself or in getting the necessary documentation. If the Minister were prepared to give us some undertaking on that basis, I would willingly withdraw this amendment and come back to the issue again on Report Stage. We have identified a series of considerations here that are worth looking at again.
We have had a very constructive debate. I wish there was an easy answer because delays drive me mad. I always felt that the customer has a right to speedy answers where that is possible. We can return to this issue on Report Stage where we can look at the question of the guidelines. I have sympathy for the case the Deputies are making but I also see the problems that would be caused by a simple one-liner. It is a broader issue. There is the whole question of the system giving quick and efficient answers. This is of paramount importance. It is vital that before it ever gets to the appeals stage, people have the right to quick, fast and sympathetic replies to queries. I cannot accept the amendment for the reasons I have given, but that is not to say that I am not sympathetic to the problem. We all see people waiting months for decisions on matters that should be decided much faster.
I withdraw the amendment but I will re-enter it on Report Stage so that there is an opportunity to consider it again. I look forward to the Minister reflecting on this in the meantime and coming back on Report Stage with a more developed set of proposals.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
I move amendment No. 11:
In page 4, between lines 43 and 44, to insert the following subsection:
"(3) The appellant shall have the right to be accompanied by an adviser of his or her choice, who shall have the right to give evidence or make affirmations on behalf of the appellant.".
The purpose of this amendment is to make it clear that an appellant has the right to be accompanied by a person who can speak on his or her behalf. This was discussed on Second Stage and there was a general feeling that this is a useful feature of the Bill. It has certainly proved to be a very useful part of the social welfare appeals system where a practice has developed that has not proved unwieldy but has been of assistance to appellants. Appellants may be very good as farmers but may not always be the best advocates for their own cause. This arrangement has proved its worth in the social welfare appeals system and would be useful in this context also.
I fully accept what Deputy Dukes is saying. I have accompanied people to hearings and I have found appeals hearings to be informal, user-friendly and non-legalistic and people have been treated very favourably. I would expect the same from these appeal hearings. My experience has been that when the appellant is accompanied at the hearing it makes a huge difference in terms of confidence, of getting information and helping to interpret what has happened at the appeal hearing. The points made by the Deputy will be covered in the regulations drafted under section 15 of the Bill. These regulations will also cover the procedure to be followed for appeals and giving notice of appeals, procedure at hearings and notification of decisions of appeals officers. I am, therefore, opposing amendment No. 11 on a technicality, but the principle is accepted.
I do not know why the Minister cannot accept the amendment. This is a key element. I also have accompanied people to social welfare hearings. The reason I put down this amendment is that I would not like to think that an appeals officer could have a problem with what he or she might regard as outside help. I know from many years experience that great trauma will be caused by appeals hearings. Many farmers happily farm but are totally at a loss when it comes to making a case at a hearing. Many depend on their spouse or an agricultural adviser or solicitor. We must assure that the door is always open to advisers at these hearings. I would not like to see a farmer's case prejudiced in the eyes of an official because he is accompanied by his own choice of adviser.
I agree with the previous speakers. We all indicated on Second Stage that it was important that they be accompanied whether by the local agricultural adviser, the county councillor or the TD. There is a category of people in agriculture, the bachelor farmers, who come to my office for whom I have to alter the tags, send away for the calf cards, fill in all the application forms, etc. They are good men at their job but when it comes to books or filling in forms there is a huge difficulty. These men worked hard for the country and are decent and respectable people. I said earlier these are the people who put the pen in the wrong place and then they are disqualified. These are the people who need to be accompanied.
I am glad the Minister is taking on board the thrust of this amendment. Is he giving the committee an absolute guarantee that there will be provision in the regulations for an adviser to attend? I do not need to go into the reasons that is useful. In the case of social welfare appeal hearings, assessors are also summoned to attend and the applicant need not go ahead with the appeal if the assessors are not in attendance. In regard to the regulations, has the Minister any proposals in regard to assessors being present at these hearings with the appeals officer?
I too support the amendment in the names of Deputies Dukes and Connaughton. I come from a constituency that has a considerable number of elderly bachelor farmers of a shy disposition who would be terrified to appear before an appeals officer without being accompanied by the local councillor, the local TD or a representative from the Irish Farmers' Association. This problem does not exist for the young trained farmer. He is an apt pupil and is able to handle his own case. However, the problem arises for the elderly bachelor farmer. The Department of Social, Community and Family Affairs allows the applicant to be accompanied by an individual of his choice to argue his case. There is no need for the Minister's stern remarks that he cannot accept the amendment. The Minister of State has admitted he has attended appeal hearings——
I have.
——on behalf of constituents in the Aran islands, Connemara and other parts of his constituency. The people in Connemara are no different from those in the Beara Peninsula, the Kilcrohane Peninsula and the Mizen Peninsula. Therefore, the Minister of State should accept this amendment wholeheartedly and agree to it.
I accept the Minister's bona fides in this but I am still not happy. The Minister of State has said he will provide for this in regulations to be made under the Acts. I have tabled an amendment to section 16 which deals with regulations. I note that the method of making regulations as proposed in section 16 is what I call the "passive" system. Regulations are made and laid before the Houses of the Oireachtas and unless a resolution annulling the regulation is made within 21 days the regulation comes into effect. In practical terms, that means, as the Minister of State knows perfectly well, that the Houses of the Oireachtas never get to discuss these regulations because the ordering of business in the Houses is a matter for the Government. In my 20 years as a Member I have never seen a regulation taking this form being put up for debate on the Order of Business. I have tabled an amendment to that section that provides for the other method of making the regulations, which is that the draft is laid before the Houses of the Oireachtas and it cannot be confirmed until a resolution approving it has been passed by both Houses. If the Minister of State says he will provide for what we are seeking in regulations and that the regulations will be made in that form I would be happy with it. Otherwise, I will not be happy about it.
It is not that I distrust of the Minister's bona fides, but I object fundamentally to making important decisions on the issues being discussed by the regulation process provided for in section 16. I have been at this for 20 years and I have never got satisfaction on it. It had been my lot on occasion when on the other side of the House to provide a different way of making regulations. Where I thought it was suitable to do so, I have done so and occasionally had rows with the Parliamentary Counsel to the Government as well. I find the process of making regulations as proposed in the Bill is iniquitous in many of the cases in which it is used. I assure the Minister of State I am not impugning his bona fides in any way but I object to that particular method of making regulations.
We are straying from the actual amendment. The position is that this matter will be provided for by regulation. The regulation will be similar to that which exists for the social welfare appeals office.
I object to it there also.
The Deputy is objecting to many things that work. That is the way it is going to be.
They do not work because they are never discussed in the Houses. The Government never brings a regulation in this form for debate on the Order of Business.
I have not——
I suggest to the Minister of State, given his recent statements about the way legislation is made in other quarters, that he should back me up on this.
I have not got that far. This is legislation that works, that is reasonable and is customer friendly. What I have been saying here is that this will be a regulation similar to the regulation that applies to the social welfare appeals office which allows a person to be accompanied when going to an appeals hearing. It will not be within the remit of the appeals officer to refuse that person going in. The second issue raised by Deputy Dukes is the passive versus the active method of making the regulation. The problem with the active method of making the regulation is that if one wished to make a minor change to the regulation and the Dáil was not sitting, one would have to wait for a sitting of the House. If it was found necessary to change a regulation in July when the Houses are in recess one would have to wait until October. That would cause its own problems; it is as broad as it is long. The committee can take not only my bona fides on this matter but the bona fides of the Minister that the regulation will be the same regulation that already operates effectively in the case of the social welfare appeals office. The whole idea of the person being accompanied - it is not that a broad church of people can go in - is very much poor man's law. My experience of the way the social welfare appeals office works - I hope the same spirit would apply here - has been that there is no need for huge expertise in the area. All that was needed was a person with common sense who had some idea of the way the scheme worked. That was enough to get a fair and full hearing with social welfare. Therefore, the appellant did not have to incur great costs in getting legal experts to accompany him. That was an important part of the social welfare appeals office.
The position is not the same for assessors. They have a limited role. If any member of the committee has attended social welfare appeals hearings and has looked at the social welfare appeals form, it is clear that the assessors only apply where they can give advice on local employment conditions. They do not apply in this case. There will be no regulations on assessors because they will not play the same role as they do under the social welfare law. The regulations will have to provide for many matters concerning the appeals in a similar way to the social welfare arrangements. The right to bring a person will be provided for - I am not saying "may be provided for" - in regulations, which will be similar to what applies in the social welfare case. We know that is a tried and tested formula. Therefore, even if it was placed actively before the House, I have no doubt we would be told, on that basis, to get on with the job quickly.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 4, subsection (3), line 47, after "hearing" to insert "including officials of the EU Commission".
I know what the Minister of State will say on this and I can save him the trouble of reading large parts of the script. The principal reason I put down this amendment is to enable us to look at another dimension to this problem. The vast majority of schemes listed in the Schedule are run, inspired or funded by the European Union, in one way or other. Virtually all of them are EU schemes and have funding and penalty mechanisms prescribed by the EU. A major concern about penalties under these schemes is the question of proportionality. I know that view is shared by all the opposition parties and perhaps even by the Minister of State. There is a palpable lack of proportionality in the degree of penalty applied in all these schemes. In many of them, there is a penalty for late applications of 1% per working day up to ten working days, after which period the application is totally rejected. On the face of it, a penalty of 1% per working day is not a huge amount. However, in the context of a scheme which amounts to 50% of the total farm income available for that year, the impact of such a penalty can be substantial.
In the case to which I referred earlier in which an animal which was not in the herd was inadvertently included in an application, it was proposed to exclude the applicant entirely from that scheme for the year 2001. Because of an error concerning one animal for which the payment would be approximately £70, that farmer was to be deprived of a total payment of £9,000 this year. That is wrong. We need to find some way of feeding into the EU mechanism the experience of these schemes on the ground. That is why I proposed, without any hope that the Minister of State would accept it, that the appeals office would hear officials of the EU Commission. Of course, the Minister of State will tell me that if we put that in, we will unconscionably extend the period for making decisions because it would take forever to get these people to come from Brussels to Naas or Newbridge.
Do not pre-empt me. Let me speak for myself.
I can see all the difficulties but we need a mechanism to feed in to the people who make the decisions at EU level the experience of how this works on the ground. If that means that Ministers and Ministers of State have to pay more attention to what is happening on the ground, so be it. They are part of the process of those arrangements being foisted on us. All those matters are agreed through the Council of Ministers or through EU Commission regulations - I will not bore the committee with the intimate details of that whole process. If penalties are disproportionate, that indicates that experience on the ground is not getting back to the people who make the decisions. I wish to find a mechanism through which that can take place. For many of the issues arising in this context, the appeals officers will find themselves telling appellants that they may decide to reduce the severity of the offence, so to speak, but once a decision has been made about the grounds, they have no discretion on the level of penalty to be applied. Much more consideration should be given to this urgent issue of the proportionality of the penalties applicable to the majority of the schemes listed in the Schedule.
Proportionality is a very important aspect of this Bill, being one of the legs needed to support it. Without the proportionality element, the Bill is like a three-legged stool, with one leg missing. Like other rural Deputies, much of my work involves dealing with problems arising under the various support schemes. I fully appreciate the need for penalties and deadlines - it would be an administrative nightmare if people could simply apply whenever they like. The closing date for the beef cow suckler scheme is the day after tomorrow. If a farmer fails to apply in time, he will incur a penalty of 1% per day up to the cut-off point at which it becomes a 100% penalty. For a farmer with 30 suckler cows, that represents a loss of £8,000. There could be many reasons for failure to meet the deadline. In all fairness, equity and justice, is it right to have such a drastic penalty? In the judicial system, how serious a crime would have to be committed to incur an £8,000 penalty? It would have to be a very grave offence. It would certainly be far more serious than the case of a small farmer missing a deadline.
If he was dealing with somebody as skilled in fisticuffs as John Prescott, the Minister might be well advised to let it pass.
Obviously, there has to be some penalty - everybody would accept that - but if the penalty was £1,000 or £2,000, who would lose? The farmer was losing all the time. Nobody wanted to lose £2,000 in income, but we are talking about losing £8,000. As Deputy Dukes said, any appeals mechanism must take into consideration the totality of issues. A huge flaw in the Bill is that this is not done. Some of the matters about which we spoke are extremely important and I accept it will be much better than what existed previously. However, the issue I am raising has not been addressed and I am sure the Minister will give many good reasons why that is so. It is a central issue in this context, and if something is not done the punishment being doled out day in, day out will continue to be way beyond the crime committed. The Department has not come to grips with this. Of course there should be penalties, but they should be in proportion to the so-called crimes committed. The Department could not operate if there were no penalties in some shape or form, but what is going on is absolutely outrageous. I cannot say why people do not ensure their applications are in on time, given their importance. One would imagine that farmers would not be late applying. However, that is not the case on the ground. There could be a death in the family and the application form may be put to one side. Some farmers might think the form is related to something else, resulting in a delay in filling it in. I listen to a whole clatter of reasons every day. A fine of £8,000 should not be applied in such cases.
The amendment proposes, in the context of giving oaths and affirmations, that EU officials be included. The technical answer to the question is that they can take evidence from and administer oaths to those who attend, including EU officials. However, they cannot be compelled to attend. Therefore, the technical part of the amendment is already covered in that if they did attend they would be included, but they cannot be compelled to attend.
The issues raised by the Deputies are valid, but we must understand what we are talking about. I have often argued that the EU seems to take a very Newtonian view of time, while I think Einstein was right, namely, that all time is relative and that there should not be absolute time limits. I do not agree with the absolutism in regard to time in the EU. However, many of these regulations relate not only to Ireland, and those who have had experience of negotiations in Brussels will know the reality of the situation there.
The suckler cow premium was mentioned. There were 74,000 applications, with penalties being imposed on 2,000 applications. Of these, 70% of the penalties were for late applications, about 1,400 out of 74,000. Those late applicants understand the rules somewhat better than Deputy Connaughton seems to. They know that an appeals officer cannot change that decision as it is laid down in black and white. An appeals officer can change a decision only if he or she can prove it was wrong in the first place. Appeals officers have no right to change a decision because they think a rule is stupid. Under the social welfare code the analogy is that if a person requires 156 contributions to get a certain benefit, then 155 will not be sufficient and no appeals officer can change that. Therefore, thinking the penalty is too severe would not be grounds for an appeal. Proof would have to be provided, force majeure, that the appeal was based on other grounds.
I accept the thrust of what the Deputy said. In relation to REPS I tried to put in place a trigger mechanism to warn people they are in penalty time to ensure they do not have a 100% penalty. I do not agree with penalties of 100% for late submission of a form. I agree with such a penalty in the case of a person who sets out to defraud, but it is very severe when it is a matter of error. We have all had experience of late applications for national schemes. For example, people might be months late for all sorts of reasons in applying for the higher education grant, but we still seem on a national level to be able to process them and pay the grants. However, the schemes raised by the Deputies do not work that way. They are structured in a particular way, and we will all try, as will the Deputy if he is ever on this side of the House——
We were there before the Minister of State.
The Minister of State can be sure we will be back again.
We will all try to get the penalties to fit the crime, and I fully agree with the Deputy as I am not happy with some of the penalties, an issue on which I am outspoken. In the meantime we should see what trigger mechanisms we can put in place to help people avoid being penalised. If they are penalised properly by officials of the Department, according to the regulations set down by Brussels, no appealing in the world, unless force majeure can be proved, can change the penalty. If there was force majeure the case should have been made to the Department in the first place and the official should have given a decision. This is more a political than an appeals issue and I have no doubt politicians will continue to raise it in the appropriate fora. The penalties should be proportionate. When they are proportionate the number of appeals decrease as people accept the penalties as being fair.
Therefore, I accept much of what the Deputy is saying, but I cannot accept the amendment.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 and 11 agreed to.
SECTION 12.
I move amendment No. 13:
In page 5, line 27, after "law" to insert ", reasonableness or fair procedures".
This takes the Minister for Agriculture, Food and Rural Development at face value. I refer the Minister to column 365 of the Official Report of 5 April 2001. The Minister for Agriculture, Food and Rural Development stated:
An appellant may nonetheless take the view that the appeals process was vitiated by a mistake of law, or unreasonableness, or lack of fair procedures. In those cases, the appellant may appeal the decision of the appeals officer to the High Court.
During the debate on Second Stage I pointed out that I agreed with what the Minister said, but the Bill does not reflect what he said. The Bill simply states the appellant may appeal the decision or the revised decision to the High Court on any question of law. I seek to add the grounds of reasonableness or lack of fair procedures, as was the intention of the Minister in the reference I have just given. This amendment should be accepted if the Bill is to be true to what the Minister said on Second Stage.
I cannot accept the amendment. Accepting it would involve a fundamental change in the rationale of setting up an appeals office. The idea of the appeals office is to have people who are specialists in the schemes and the issues involved review decisions from a base of expertise.
If we were to do what the Deputy suggests, it would only prolong matters. By the time we got a decision from the appeals office the issues would have been considered twice by specialists - once by an original decision maker and once by an appeals officer. There is also provision under section 11(2) whereby the director may revise the decision of an appeals officer if it appears that the decision is wrong either in law or in fact.
The whole idea of the appeals process is to bring finality, which is what most people want. However, it is necessary to provide for an error within the appeals process itself, and this is done by allowing an appeal to the High Court on a point of law. If an appellant believes that an appeals officer has made an error of law, which would include misinterpretation of the rules, he or she may appeal to the court.
There is also the possibility of a judicial review if it is believed that the procedures were not fair. Everything the Deputy requested is, therefore, provided for.
Then, why not say it? Let me quote more extensively from the Official Report of 5 April 2001, Vol. 534. column 365. The Minister for Agriculture, Food and the Marine, Deputy Joe Walsh, stated:
Mistakes are of course made and that is the reason for the existence of an appeals mechanism in the first place. Mistakes can also be made in the course of the appeals process itself, but this is very rare. An appellant may nonetheless take the view that the appeals process was vitiated by a mistake of law, or unreasonableness, or lack of fair procedures. In those cases, the appellant may appeal the decision of the appeals officer to the High Court. Provision is also made for internal revision of a decision within the office, either when new evidence comes to light or the director considers that the decision was wrong because of error of fact or of law.
The Minister clearly said that the appellant may make an appeal to the court if he believes that the appeals process was vitiated by a mistake of law or unreasonableness, or lack of fair procedures. That is what the Minister set out to provide for and that is what my amendment seeks to do. Any other course of action, any refusal to add those words now amounts to nothing more or less than the Minister of State making a monkey of the Minister. I do not think that is what he set out to do. I merely ask that the declared intention of the Minister on Second Stage, when he was under no pressure to say anything that he did not want to say, be translated into the terms of this Bill.
Let us take the facts as they are. If a person is not happy with a decision he can go to the appeals office. If he is still not happy he can seek a review by the director of the appeals officer's decision. If he is still not happy he can go to the Ombudsman, and if he is still not happy he can take the case to the High Court on a point of law under a provision of this Act. If he is not happy about the procedure, there is the rule under which everybody has the right to seek a judicial review. What else could a person seek?
The Minister should say it.
It is already there.
Say it.
That is universal.
Say it.
What is the point in repeating ourselves?
Why did the Minister for Agriculture, Food and Rural Development specifically state these things on Second Stage? All I ask is that what he said be reflected in the Bill. The Minister of State has told me, and I agree with him, that the issue of fair procedure is already there implicitly. What is implicit may be stated explicitly without doing violence to any interest. What I want to add to that is the Minister's statement about reasonableness. I want the Bill to say what the Minister intended it to say, according to what he said in the Dáil on Second Stage.
The Minister said that it can be taken to the High Court on the grounds that there was a mistake in law or that the procedure was incorrect.
I have quoted what the Minister said and in a few minutes' time I will quote what the Minister of State said about the Ombudsman because I have an amendment which seeks to make that explicit also. I see nothing wrong with making explicit what is claimed to be implicit.
I can only deal with facts. The law provides for an appeal on a point of law, which must be specifically provided for. I do not claim to be an expert in the law, but my understanding is that the right to judicial review is universal in such circumstances and, therefore, does not have to be explicit in this legislation. The right to take a case to the Ombudsman is also provided for without explicit provision in this legislation. To provide for either is, therefore, totally unnecessary and does not add anything to the law. To add them would imply that they were not there in the first place and would cast doubt on many other matters because it is the citizen's right to seek a judicial review.
That is utter, absolute, unadulterated sophistry.
It seems that when a cogent argument made by somebody like me stands up to reality it is sophistry, pettifogging, nit-picking and Jesuitical. Other people in this country get £2,000 a day for making arguments that stand up. On procedure, there is a right of judicial review. The Minister does not need to include it because it is already there.
There is no problem with putting it in here. It does not imply anything for other legislation.
Let us reverse the question. What right is denied by leaving it out? It is not the right in relation to unfair procedure because that is already there. Nothing, therefore, is left out.
Reasonableness.
It is totally unnecessary.
Reasonableness is what the Minister said.
Why not incorporate it? Why can the Minister of State not accept what my constituency colleague, the Minister for Agriculture, Food and Rural Development, has said?
It would create a bad precedent because it is already there.
The Minister of State wishes to make a monkey of the Minister by refusing to do what he said he wanted to do on Second Stage.
The Minister of State has failed to honour the Minister's words.
All he had to do to make sure that all his words were honoured was to put in what is in the Bill. The other two matters were already provided for. He has provided for the third measure that was necessary. He has, therefore, provided for the three matters. This is a perfect case of there being none so blind as those who do not want to see. The citizen knows he has a right of judicial review and will not be slow to avail of it if he thinks a decision is unreasonable or the proper procedure has not been followed.
The farmer in the peninsular area from which I come might not be as up to date on legal procedure as the Minister of State.
Farmers in Connemara would be?
They are well advised.
They are very well advised.
Amendment put and declared lost.
Section 12 agreed to.
NEW SECTION.
I move amendment No. 14:
In page 5, before section 13, to insert the following new section:
"13.-The provisions of the Ombudsman Act, 1980, shall continue to be available to appellants in relation to the schemes listed in the Schedule to this Act.".
To abbreviate the proceedings, can I take it that the Minister's reply to amendment No. 14 will be essentially the same as his reply to amendment No. 13?
It is not. There is provision in regard to the Ombudsman.
In other words, the right to direct contact with the Ombudsman is there.
Yes, in section 18, and it is very important that it remains. In view of the debate on the earlier section, it is important that people have access to services such as that of the Ombudsman because, as I said, they are definitely the poor person's redress. They are handy and convenient and tend to deal with the reality of ordinary people's live. We have all come across people who, even if there were 150 appeals, would not be happy that they had received a fair answer and who always feel they have been done down. They are very few and far between but there are people who always believe they have been treated wrongly and no matter how many appeals are held - one could even appeal to the United Nations - they would still feel they were done down because they cannot distinguish between a fair application of a rule that they may think is unfair. There has to be a comprehensive system of redress, but there has to be a reasonable limit to it.
I thank the Minister of State for his response. I note that section 18 amends the First Schedule of the Ombudsman Act, 1980. It is necessary to amend that only because we are providing for something that was not provided for in the original Act or where it was not clear whether it was provided for. In the parliamentary draftsman's mind, at least, it was not clear that it was implicit that people had a right to access to the Ombudsman on the issues set out in the Schedule to this Bill. That is why an amendment to the First Schedule of the Ombudsman Act is provided for in section 18. I am not arguing with that as it is an important provision.
Why is it necessary to specify in section 18 that the amendment to the Ombudsman Act relates to the Department of Agriculture, Food and Rural Development appeals officers under the Agriculture Appeals Act, 2001? Does that mean there are other parts of the activities of the Department of Agriculture, Food and Rural Development to which the provisions of the Ombudsman Act do not apply?
My understanding is that all the activities of the Department of Agriculture, Food and Rural Development have been covered up to now. What we are setting out to do is to make sure the appeals officers to be appointed under this Bill are covered by the Ombudsman Act. There is no question but that all the activities of the Department previously were covered under the Ombudsman Act.
Amendment, by leave, withdrawn.
Section 13 agreed to.
NEW SECTION.
I move amendment No. 15:
In page 5, before section 14, to insert the following new section:
"14.-(1) Where representations are made to the Minister under Article 8(1) of the Diseases of Animals Acts, 1966 to 2001 (Approval and Registration of Dealers and Dealers' Premises) Order, 2001 (S.I. No. 79 of 2001), the Minister shall, upon receipt of such representations refer them, as soon as may be, to the Director for advice.
(2) The Director shall, within 28 days of receipt of such representations, consider them and advise the Minister.
(3) The Minister shall have regard to any advice given to him or her under this section before revoking or suspending a registration or refusing to register a person or premises under the aforesaid Article 8.".
To repeat what I said, the Minister of State's amendment No. 15 and amendment No. 16 have the same objective. Amendment No. 15 is more accurately formulated. It is important to make the point that what the Minister of State proposes here and what we propose is that the provisions of this Bill would clearly apply to dealers. We had some concerns - I am glad the Minister of State has taken them on board - that the provisions for the registration of dealers, the approval and registration of dealers and dealers' premises, would be ones where there is access to an appeals mechanism.
When we discussed this matter on Second Stage, I made the point that the provisions of the statutory instrument referred to in the amendment are not necessarily clear in all respects. There may be reasons this is so, but they escape me. It is not clear in the wording of the statutory instrument in question what a dealer has to do to satisfy the Department that premises are up to the standards required. I may be told it is impossible to provide in law for every conceivable situation but where matters are uncertain or unclear in law, there is always the fear that an element of arbitrariness will enter into the administration of the scheme. For that reason, access to the appeals system would be very important. I am glad we are on the same side of logic on that issue.
I, too, am delighted this has been catered for. I spoke at great length on two or three occasions in the Dáil during the foot and mouth disease crisis and I will not go into it this evening except to say that I, no more than anyone else here, hold no candle for rogue dealers but we would be making a huge mistake if, for any reason, we made it difficult for bone fide dealers to work. They are part of the jigsaw that is the livestock trade. Most dealers worry about the type of circumstances in which a dealer will be allowed to deal. They fear they will be so restricted that most will be put out of business. That is why it is extremely important that they can go to the appeals board. That is as important as anything else in this Bill. It is a problem at which the Department should look immediately.
A great number of dealers do not know where their future lies. They do not know what the circumstances will be. Whatever conditions or principles are laid down for them, they should be announced immediately. I assume dealers will be asked to submit an application form or to contact the Department so they may be allowed to operate. If that procedure is too restrictive, there will be a greater danger of livestock marts closing, and that would concern everybody. If we do not have competition with the factories in good and bad times, we will have a lot of trouble.
I support the points made especially in light of the fact that when I asked a question during Question Time, the Minister had to advise us that only one load of cattle had left this country to go to Lebanon. The other markets about which the Minister spoke some weeks ago are not yet open. That is mainly because of the lack of a clear indication to dealers how they can put together a load of cattle. For instance, there could be live shipments directly to Spain at present if the mechanisms existed to facilitate that. I support this amendment. Hopefully, regulations on premises will be introduced quickly.
Amendment agreed to.
Amendment No. 16 not moved.
Section 14 agreed to.
Section 15 agreed to.
NEW SECTION.
I move amendment No. 17:
In page 6, before section 16, to insert the following new section:
"16.-Where it is proposed to make a regulation under this Act, a draft of the regulation shall be laid before each House of the Oireachtas, and the regulation shall not be made until a resolution approving the draft has been passed by each such House.".
I suspect there is little chance of the Minister accepting this amendment for reasons he has previously outlined. I receive similar replies on each occasion I raise this issue, irrespective of my function at any given time. It is balderdash for the Minister to say he cannot accept the active form of these regulations because a necessity may arise in July after the House has gone into recess for the summer and it would not be possible to address it until October.
I do not know how many Members examine the text of regulations laid before the Houses which are never debated by the Government but their implementation dates frequently extend into the future. They do not all provide for something to be regulated today and effected tomorrow. There is a judgment to be made about the form of regulations we use. I contend that our bureaucracy - and I use the word in a non-pejorative sense - always finds in favour of its own convenience on these matters and we end up in many cases with important regulations being made, laid before the Houses and coming into effect within 21 sitting days unless they are annulled. This is an unfair and undemocratic way of making regulations which have serious consequences. Judgments are rarely made for the convenience of people who must suffer or bear the consequences of such regulations.
The regulations to be made in this instance should automatically and as of right be subject to democratic scrutiny. We frequently find that regulations are of such a nature that, were they placed on the Order Paper, they could be passed without debate. The Houses of the Oireachtas should be given the opportunity to make that judgment for themselves far more frequently than currently happens. I submit that the regulations which will be made under this Bill in regard to the appeals mechanism are of such a nature that the Houses should have a choice to debate them.
I cannot accept this amendment although I can understand what Deputy Dukes is getting at. The sheer volume of regulations made here and in Brussels is mind boggling. We must bring proportionality to bear in these circumstances because it would prove problematic to separate major regulations from minor ones. It would be reasonable to wait until resolutions were passed in regard to major issues but we are providing here for a procedure for appeals, prescribing a timeframe within which appeals must be lodged and their format, the addition of new schemes etc. These are not major issues which radically alter the thrust of the Bill and they will not break any new ground. In many cases, they are minor issues which can be easily addressed by way of regulation.
If it were necessary to obtain a positive resolution from each House of the Oireachtas each time such a regulation were contemplated, that would clog up the administration of the appeals system in addition to adding considerably to the workload of the Oireachtas. If a necessity arose during recess, considerable delays would occur. It would be desirable in an ideal world for all regulations to be reviewed but that is simply not possible. The type of regulation involved here is purely procedural and templates already exist in regard to social welfare appeals which will guide us in this area. I oppose the amendment.
I am not proposing that every regulation on every issue should come before both Houses of the Oireachtas. I am simply saying that certain regulations which should come before the Houses do not because the decision is left to the bureaucrats who, by and large, are excellent, motivated and competent people. The administration of the appeals system is not a minor issue. We have discussed deadlines and people's right to be accompanied. Under the Bill as is stands, the Minister will make regulations which will deal with the issue of deadlines either by omission or commission and the Houses of the Oireachtas will not have any say in the matter. The Minister may decide on a time limit of eight, ten, 12 or 26 weeks and the Houses of the Oireachtas will not have an input.
I reiterate that in my 20 years as a Member of this House, I have never seen a regulation of this kind put on the Order Paper by the Government of the day to be debated by the Dáil. No Deputy in this House gets the opportunity to say "I would like to annul that regulation". I am aware it is futile to try to convince the Minister on this point but this form of regulation and our slavish adoption thereof in case after case on the basis of bureaucratic decisions represents a 100% native, home-grown democratic deficit.
Hear, hear.
It may be a matter of little importance here but I find it ironic that this Minister of State is refusing the slightest chance to remedy this democratic deficit.
The Minister may lay down regulations only in relation to the timeframe. Section 8 provides for only guidelines to be issued.
The Bill does not prohibit the Minister stipulating absolutes. The Minister could introduce regulations specifying a timeframe.
The legislation states: "An appeals officer shall determine an appeal, as soon as is practicable, having regard to any guidelines in this regard issued by the Minister". The Minister can issue only guidelines, not absolutes. I have a certain sympathy for what Deputy Dukes said, but I will still oppose the amendment. The Deputy is free to table the amendment on Report Stage.
I expect to raise it as long as I am a Member of the House. I will also be annoyed as long as I am a Member by Ministers and Governments always supinely proposing the form of regulation the bureaucracy devises.
I will convey the Deputy's concern on this issue to my colleague.
This is the umpteenth time in 20 years I have raised the matter and it will make damn all difference.
Amendment put and declared lost.
Section 16 agreed to.
Sections 17 to 19, inclusive, agreed to.
SCHEDULE.
I move amendment No. 18:
In page 7, between lines 2 and 3, to insert the following:
"Animal disease eradication schemes".
There is a doubt in my mind whether the appeals mechanism is available for animal disease eradication schemes. I do not believe it is and, as far as I know, although I may be wrong, no other form of appeal is available. I know that, where depopulation occurs under animal disease eradication schemes, there is a provision for arbitration, and compensation is involved. It would be useful for the reassurance of the farming community if animal disease eradication schemes were brought into the context of this appeals procedure. It can be done simply by adding the words to the Schedule. It may need a more detailed and elaborate reference than I propose, in which case I will be happy if the Minister of State comes back on Report Stage with a suitable proposal.
I stated at the close of the Second Stage debate that it is intended to include in the Schedule the non-valuation aspects of the new on-farm valuation scheme for TB and brucellosis eradication. The valuation aspect of the scheme already has an appeals mechanism involving second valuations and arbitration, where necessary. It would not be appropriate for agricultural appeals officers to be involved in these matters and I am sure we all accept that. I have no difficulty with appeals officers dealing with the other aspects of the scheme and this will be examined for Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Schedule agreed to.
Amendment No. 20 not moved.
Title agreed to.
The Select Committee is adjourned until 4 p.m. on Wednesday, 27 June when we will consider the Adventure Activities Standards Authority Bill, 2000.