Departmental Legal Cases

Dáil Éireann Debate, Wednesday - 13 July 2016

Wednesday, 13 July 2016

Ceisteanna (24)

Martin Kenny

Ceist:

24. Deputy Martin Kenny asked the Minister for Agriculture, Food and the Marine the action he will take, in view of the High Court judgment of 2 June 2016, which found that his Department’s procedures in conducting farm inspections were lacking by not providing a control report, not applying the maxim of audi alteram partem, or fulfilling the onus on the decision-maker to comply with regulation, to give the applicant the opportunity to make the case before applying penalties. [21375/16]

Freagraí ó Béal (5 píosaí cainte)

Deputy Michael Creed

In the context of delivering direct payment schemes and rural development measures, my Department is required to carry out on-the-spot inspections on a number of farms. These inspections address a range of issues in relation to land eligibility, scheme specific eligibility and other EU regulatory requirements. The basis for the inspections is governed by EU legislation and there are certain minimum numbers and types of inspections that must take place annually. These inspections are a necessary requirement to draw down approximately €1.5 billion of EU funds annually and to avoid EU disallowances.

The legal case to which the Deputy refers has not yet reached its ultimate conclusion, and, as the matter progresses - I understand it will be finalised on 28 July - I will obtain legal advice, as appropriate, on the wide range of complex legal issues involved. Accordingly, any issues arising as a result of the legal case can only be addressed following the completion of this legal process.

Deputy Martin Kenny

This case went through the courts on 2 June. The farmer in question lodged an appeal to the Department. When officials came out to his farm, they did not fulfil the regulations set out by the Department and the EU. If the shoe was on the other foot and the farmer had not fulfilled the regulations, we know what would have happened. As the court said, this farmer has to be compensated for his losses because his appeal was not dealt with properly. Hundreds of other farmers are in a similar position. They did not receive a control report, which was supposed to be provided, and this is at the nub of the case. Many of them are examining their positions and saying they had a fair case which was not dealt with properly and they did not get the fair play they felt they deserved. Now they want to know whether they can apply to get their money back and to be compensated for their losses. If the shoe was on the other foot, the Department would do so. Will the Minister commit to repaying them for their losses as a result of this failure?

Deputy Michael Creed

I am acutely aware of the interest the issue has raised among many farmers, not least farmers in my constituency who have spoken to me about the implications, with them having been on the receiving end of departmental disallowances, fines, increased fines on review etc. The judgment goes to the heart of the process about the failure of the Department to issue a control report prior to imposing penalties. However, before we are in a position to conclude on what the spillover consequences will be for any other farmer, we need to have the finality of the judge's decision and that will be published on 28 July. We have the broad substantial outline of his judgment and I will not hide behind the ultimate qualifications which he may make. Much of the commentary will be in respect of costs etc., but there are other issues on which parties have been invited to make submissions that can be considered by the judge before he makes his final deliberations on the matter.

I am acutely conscious that many farmers feel aggrieved by the process. Whatever the consequences of the case, the Department has to operate within the law, and if we require further clarification of the law, so be it. We await the final decision and I am acutely aware of the heightened level of interest in the farming community in the matter. However, the Deputy will understand that until I have the ultimate interpretation of the judge's ruling, I cannot comment in detail or, indeed, raise expectations of farmers who feel they may have been aggrieved by the issues raised in the court case. This afternoon, legal advisers from my Department are meeting senior counsel to explore all the consequences of the ruling

Deputy Martin Kenny

It is disappointing that we are in this position. The judge stated, "The lack of respect for fair procedures was extended to the review when other penalties were imposed without any opportunity given to the applicant to make submissions in advance of the imposition of an extra penalty." In other words, when the appeal was lodged and the officials visited the farmer to conduct the review, not only did they uphold the first penalty but they imposed a second penalty on the farmer. That is the case for many farmers throughout the country. While I acknowledge the Minister said farmers feel aggrieved, they also feel vindicated by this case. The Department has many questions to answer in this regard.

If farmers are obliged to do something for the Department to secure a grant, strict time limits are set and they must do it this way, that way or the other way. I have experience of this on many occasions. Every hurdle is set in their way, yet when the Department does something, officials seem to be able ride roughshod over everybody. That sense of officialdom always winning out has been challenged and defeated in the courts on this occasion. It would be a measure of due respect to the entire farming community if the Minister simply put his two hands up and said the Department was totally wrong in this case and it will look after the farmer.

Deputy Michael Creed

The Department has many responsibilities in this area. One is to secure the level of payments we get annually from the Commission. The amount is €1.5 billion across the various schemes. Prior to the Deputy's arrival in the House, but in the not too distant past, the State incurred fines of almost €70 million for not adequately policing EU schemes. This hit affected the entire farming community. While fair procedures must be ensured, we must also abide by the accountability process to which we are subject in respect of public funds the EU gives us under the CAP. This must be done fairly and I acknowledge the court's decision in this regard. We will study it, and if there are spillover consequences in respect of other decisions the Department has made, we will have to consider how the judgment impacts on them. However, it is a little premature at this stage. We await the judge's final comments on 28 July and there are meetings this afternoon in the Department between senior counsel and senior officials in my Department to study all the implications of the judgment. I acknowledge it is a significant issue in which farmers are interested. Many of them feel they would have been unfairly treated. We will have to see the implications, if any, of the judgment in this respect.