Wednesday, 21 February 2001
Seanad Eireann Debate
I welcome the Minister to the House. He looks as though he is in a good natured humour and that he will accept all suggestions with an open mind, as he has done in the past. I have no doubt we will have an interesting afternoon.
 All my amendments have the same purpose, which is to beef up the independence of the appeals process so that it is clearly seen to be fully independent and, in the case of appeals, that the decision-making process will be known to be conducted in an independent manner. I was encouraged to table these amendments by what the Minister said when introducing the Bill on Second Stage:
I have always taken the view that it is a very good procedure to introduce legislation in the Seanad. [We all agree with that]. Having it debated by the learned Senators and having some public debate on it before it goes to the Dáil, it is much better to accept helpful amendments and amendments which strengthen the legislation here.
On the basis that the Minister has come in with an open mind, we all know him well enough to know that when he utters such sentiments, they are not plámás but he means what he says. I remember how he listened to our reservations on the National Beef Assurance Scheme Bill. Instead of rushing it through before the summer recess he agreed to hold off Report Stage until after the autumn when the matters could be raised and more fully considered. From that point of view I am further encouraged in tabling these amendments because we all seem to be agreed – the Minister, myself and all the Senators who contributed on Second Stage – that the heart of this Bill is the issue of independence of the appeals process. I know that is what the Minister wants to achieve.
Apart from myself, many of the Senators on Second Stage expressed reservations about whether the proposed body was sufficiently independent. The Minister said the independence of the agriculture appeals office is its crucial aspect. Where the Bill can and needs to be improved is in strengthening this crucial aspect of independence. Senator Callanan spoke about his unhappiness at taking power away from the elected representatives and placing it in the hands of someone else. I can understand that view but we are talking about independence. Unless the perception of independence is total on the part of the people who will use this service, the whole operation of the appeals system is pointless. In drafting the Bill, the Minister and his advisers appear to have taken a minimal approach. I am sure the Bill will not end up as an Act in that way and that its independence will be strengthened. I would like it strengthened in this House rather than wait until it gets to the other House.
The example of the social welfare appeals office, which has been operating successfully for over ten years, has been followed. Some Senators spoke approvingly on Second Stage of the work of the social welfare appeals office and I have no doubt they are right. What is undoubtedly true is that it falls at one end of the independence spectrum, at the minimal end. It would be more prudent to choose instead a model from somewhere  else on that independence spectrum to remove the risk of the minimal approach being taken. That risk is quite large for the reasons I gave on Second Stage. I pointed out that section 2 gives the Minister totally unfettered power to appoint and remove appeals officers at his or her whim. There is no safeguard against being removed because the Department does not like the way an appeals officer is performing. To be credible, there has to be a safeguard against that.
I drew attention also to the undermining of the role of the Director of Agriculture Appeals. In this Bill the key people are the appeals officers, one of whom the Minister chooses to be director. This is crucial. The director should be the lynchpin of the operation and the appeals officers should be clearly seen to be under his or her command. That point covers all the amendments but specifically these four amendments.
In my amendments I have set out another way of setting up the appeals system, one based on examples that are further along the spectrum of independence. The Office of Director of Consumer Affairs, the Office of the Data Commissioner and the Office of the Ombudsman were set up differently from the social welfare appeals office. I tabled the amendments to illustrate the many differences between the minimalist approach set out in the Bill and the more prudent approach I am suggesting. No doubt they could have been better drafted and I would not go to the stake over wording of any of them, particularly these four. What I am trying to demonstrate is that there is a better way than that put forward by the Minister. In considering this matter we should remember we are not dealing with trivia.
The explanatory memorandum informs us that the agriculture appeals office will have 32 staff and will cost £1.5 million per year. Clearly agriculture appeals are big business and we should be sure of the structure we put in place to deal with them. The best reason to consider beefing up the independence of the appeals office is to ask what will change if the Bill is enacted in its present form. I suggest to the Minister that nothing will change. The existing appeals system will continue. It will continue exactly as heretofore, the only difference being that it will now be on a statutory footing, whereas that was not the case in the past. What difference will that statutory footing make to the appeals process? What difference will it make in terms of how the clients of the system perceive it? My concern is that they will perceive it as making no difference.
I cannot believe the need which gave rise to the Bill in the first instance, and which led to a commitment being written into the Programme for Partnership and Fairness, will be satisfied by this legislative figleaf. If there is a real demand for an independent appeals process, let us satisfy that demand with a system that is clearly independent, without any possible doubt whatsoever. Given the minimalist approach in the Bill as it  stands, it runs the risk of leaving that demand unsatisfied and possibly frustrated. Why should we take that risk?
I commend the amendments to the House. Amendment No. 1 proposes deleting lines 13 and 14 in page 3 which read, “‘appeals officer' means an appeals officer appointed under section 2”. Amendment No. 2 proposes substituting line 15 with the words, “‘Director' means the holder of the office of Director of Agriculture Appeals as appointed under section 2 of this Act;”. Amendment No. 3 seeks to almost copy the sort of structure that exists in setting up the data commissioner, the Ombudsman and so on. I have attempted here to say that instead of a figleaf, we should ensure we set up a statutory structure which corresponds to the other appeals commissions. Instead of taking the minimalistic approach of the social welfare appeals process, we should go for something along the lines of the other three. On that basis, I believe the amendments will strengthen the credibility of the office and will, therefore, be regarded with far more confidence by those who must appeal to it.
Mr. T. Hayes: I support the amendments tabled by Senator Quinn. The demand for this Bill is huge and has been spoken about for some time. I referred in detail to the need for the Bill during the Second Stage debate, which we all accept. Given that we are going through the process of putting this legislation in place, we need something that will work. For it to work, trust and independence are needed. The basic problem is that the office is not seen as independent and that is why I support Senator Quinn's amendments.
Ms O'Meara: I, too, support the amendments on the basis that they address key issues in the legislation identified on this side of the House as requiring to be strengthened and amended. During his closing remarks on Second Stage, the Minister appeared to indicate that he would bring forward proposals in that regard.
In the intervening time, I spoke with an individual about whom I have written to the Minister on more than one occasion. This person has had the experience which Senator Doyle described and which I termed the ground hog day experience, whereby every year the same problem pops up in exactly the same form, the same query and the same issue from the Department, in a manner which seems to hit individuals in an extraordinary fashion. I discussed the outline of the legislation with this person and, although neither of us is an expert in parliamentary drafting and so on, we simply considered how the principle of the independence of the office would operate. This is the core issue because the office must not just be independent, it must be seen to be independent and must have the statutory power to operate effectively and independently.
Dr. Henry: I support Senator Quinn's amendments. A criticism of the Department of Agriculture, Food and Rural Development is that all too frequently it polices itself. This has led to a loss of trust in the Department. It has also led to many problems in relation to the BSE crisis because it is felt there is not sufficient clarity of the divisions between the various agencies which no longer come under the Department, such as the Environmental Protection Agency and the Food Safety Authority. I recognise the need for an agriculture appeals office because people's grants are delayed for a considerable time or are sometimes refused for quite minor mistakes. However, I believe it is a mistake to have one section of the Department policing other sections of the Department. It would be better if it were a stand alone authority.
Mr. Callanan: When we debated the Bill last week there was a general welcome for it even though it went to a vote afterwards. I had difficulty understanding this because the legislation had been sought for a couple of years and we welcomed the fact that the Minister had now brought it into the House for consideration and hopefully for adoption.
I asked that two issues might receive further consideration. Senator O'Meara refers to the issue in her amendments. This relates to section 9 which states that an appeals officer may hold an oral hearing. We would have substantial support to meet requests that that read, “shall, if required, hold”. I believe I used these words on the last occasion.
On the independence of the appeals board, while we support the principle of the independence of the board, we support it in the context in which it is framed in the Bill. I said the last day and I repeat it here today that I would not be party to moving away from the ultimate authority of the democratic process. The Oireachtas had a tendency in the past to set up independent commissions, bodies and so on. The debate which took place here half an hour ago equally referred to a non-elected person having a determination right and not being answerable to anyone. Anyone engaged in the democratic process ought not accept that final principle. For these reasons, I will argue adamantly that we retain in the Bill the final democratic principle.
Many non-elected European agencies require that their regulations be adhered to in this country. That is not what democracy is about. It is not for me to preach about democracy as we are all within the democratic system. I support the democratic system and the democratic principles in the Bill. Accordingly, I have difficulty with some of the amendments.
Perhaps an amendment should have been included to the effect that where independent people, be they independent planners, people from Teagasc or the person who the farmer visits in the evening who draws up a plan at a cut price rate, draw up plans that are required to be sub mitted for aid, the purpose of which is to augment farmers' incomes, and farmers lose money, the people involved must carry some responsibility. This may involve the establishment of a register of planners who should be required to have an insurance policy. It would mean that if a wrong is committed and a farmer is denied income aid because of a badly or wrongly drawn up plan he and his family will have a means of redress. I accept that plans are not intentionally badly drawn up, but stories have been told of plans drawn without the farmland being walked, although some farms are difficult to assess. I support the Bill.
Minister for Agriculture, Food and Rural Development (Mr. Joe Walsh): I am pleased to have circulated the Bill to the relevant farming bodies and the industry, introduced it to the Seanad and considered the public debate following Second Stage debate in the House. The legislation was agreed in the Programme for Prosperity and Fairness and has been well received. When drafting the Bill I considered other organisations, models, and legislation, including the social welfare appeals office, the Office of the Ombudsman, the Refugee Appeals Board, the Labour Relations Commission and An Bord Pleanála. I used as a model the legislation establishing the social welfare appeals office, not only because I am familiar with it, having dealt with it for over a decade, but because I considered it to be the fairest in its scope. I found it to be a considerable improvement on the old system. Most of my colleagues and Senators would accept it has worked well, especially when 12 or 15 years ago most public representatives had big problems with difficulties and delays involving social welfare.
The model proposed in these amendments by Senators Tom Hayes and Quinn is closely related to that of the Director of Consumer Affairs. I do not object to that approach, but I am unsure if it would generate a better result. Senators on all sides of the House would agree that the social welfare appeals office has been very successful in providing an appeals service to its clients. Its independence is not in question and it operates within the Vote of the Department of Social, Community and Family Affairs.
The structure I propose in the Bill is identical to that of the social welfare appeals office. Appeals officers will be appointed in exactly the same way. The role of the director and the reporting arrangement between the new office and the Minister are identical. The decisions of the director will not need the approval of the Minister, indeed he will have no truck with interference in the day-to-day operation of the office, which will be a matter for the director and the staff. The Bill provides that he or she will be independent.
Senator Quinn expressed concern that appeals officers will be directly appointed or dismissed by the Minister. The recruitment of the director and  the officers will be conducted by the Civil Service Commission, which is completely independent. Most public representatives know if they try to interfere with the commission they will be quickly put in their place. The appeals officers will be permanent civil servants. In all my years in public life I am unaware of any Minister who was foolish enough to try to sack a civil servant.
Senator Henry alluded to BSE. I thought I might have a safe haven here from that topic, but there is no getting away from it. Another problem has arisen with foot and mouth disease. Senator Rory Kiely expressed concern about that. He also expressed concern that an event to be held in the middle of next month in the Cotswolds, England, might possibly be jeopardised. I hope it will not.
The social welfare appeals office has stood the test of time for a decade. When dealing with social welfare appeals, social welfare officers do not encounter the wrath of the Minster for Social, Community and Family Affairs. In the case of the agriculture appeals office, the Minister will have no role or function in the day-to-day determination of appeals.
I am sympathetic to Senator Henry's suggestion that the appeals officers should cover the entire public service and that they should not be confined to my Department. That will be considered when we deal with amendments Nos. 4 and 5. I am unable to accept these amendments for the reasons I have outlined.
“The Minister may appoint such and so many of his or her officers as he or she thinks appropriate to be appeals officers for the purposes of this Act and every person so appointed shall hold office during the pleasure of the Minister.”
I could not remember Bernard's name in “Yes Minister” but Senator Henry reminded me of it. The Minister no doubt will have been interested in “Yes Minister” at the time when Sir Humphrey Appleby was the permanent secretary general of the department and the private secretary to the Minister was Bernard. It was made very clear to Bernard that his future promotional prospects and his position in the department-—
Mr. Quinn: I doubt very much that it was fictional. It was made very clear to Bernard that his future promotion would depend on his position in that department. That is the aspect which  shakes my confidence in the independence of this body.
Maybe this is an exact replica of the social welfare appeals office, but I did not understand that. I spoke to somebody who knew something about the social welfare appeals office and they said they were very attracted by the quality of the people there. I got the impression that those people were brought in from outside and that they were not employees of the Department of Social, Community and Family Affairs. One was a barrister who was seen to have had no great loyalty to the decisions that had been made by the Minister and, therefore, when the Minister made a decision, this barrister, who was working for the social welfare appeals office, did not feel threatened if he did not support the Minister.
I hope the Minister will put my mind at rest in this regard. I hope he will be able to assure me that this is an exact replica of the social welfare appeals office. If that is so, I would say it is only a minimalist approach. Let me take the example of someone appointed by the Civil Service Commission to the social welfare appeals office and who comes from outside that office. I do not believe they become part of that Department, they are independent of it. In this case, someone recruited from outside to this appeals structure will become part of the Department of Agriculture, Food and Rural Development. Perhaps the Minister will put my mind at rest that there is no difference between the two functions.
Mr. Joe Walsh: It is identical. I inquired as to whether this was lifted word for word from the social welfare legislation and I received confirmation that it was. Some of the words are archaic, old fashioned and unhelpful. Maybe the words “at the pleasure of the Minister” were the order of the day in Sir Humphrey's time. I confirm that this is an exact replica but I will look at the wording. I give an assurance to the House that I will seek to couch it in more modern and helpful language because the words “at the pleasure of the Minister” are not the order of this century and millennium.
(2)The office of Director shall be a position in the Civil Service and no person shall  be appointed to the office unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 15 of that Act, have, under section 17 of that Act selected him or her for appointment to the office.
(3)A person appointed to be the Director shall hold office for a period of five years but the Minister may, if he or she thinks fit, continue the appointment (including an appointment previously continued under this subsection) for such further period not exceeding five years as he or she considers appropriate.
(4)There shall be paid to the Director, out of money provided by the Oireachtas, such remuneration and allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.
(8)(a) The functions of the Director shall be to consider and make determinations on appeals made by affected persons against  decisions taken by officers of the Minister in respect of applications for entitlement under the schemes set out in the Schedule.
(e)(i) Whenever it appears to the Minister that the Director is temporarily unable to discharge his or her duties, the Minister may appoint a person to act in place of the Director during such inability or for such shorter period as the Minister thinks proper.
(ii) A person appointed under subparagraph (i) of this paragraph shall have all the powers, rights and duties conferred on the Director by this Act and each reference in this Act to the Director shall be deemed to include a reference to such a person.
(f) The Minister may make regulations to provide for the procedure to be followed on appeals under this Act, but shall not give instructions or guidelines to the Director other than by means of regulations.
(i)(i) As soon as may be after the end of each year, but not later than 1 month thereafter, the Director shall make a report to the Minister of the performance of his or her functions under this Act during that year and, as soon as may be after receiving the report, the Minister shall cause copies of the report to be laid before each House of the Oireachtas and at the same time to be published by electronic means.
 (9) The Minister shall make available to the Director, on a request being made by the Director, such staff, premises, equipment, services and other resources as the Minister may determine from time to time in consultation with the Minister for Finance.
(b) Accounts kept in pursuance of this subsection in respect of each year shall be submitted by the Director not later than 1 month after the end of the year to the Comptroller and Auditor General for audit and, as soon as may be after the audit, a copy of those accounts, together with the report of the Comptroller and Auditor General on the accounts, shall be presented by the  Director to the Minister who shall cause copies of the documents presented to him or her to be laid as soon as may be before each House of the Oireachtas.
(11) The Minister may delegate to the Director the powers exercisable by him or her under the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Acts, 1956 and 1958, as the appropriate authority in relation to officers and servants of the Director, and, if he or she does so, then, so long as the delegation remains in force–
Cregan, Denis (Dino).
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
Amendment Nos. 4 and 5 are simple amendments which seek the substitution of certain phrases for phrases in the Bill. In the case of amendment No. 4, the insertion of the word “persons” would increase the pool of personnel eligible for appointment to the position of appeals officers. People throughout the wider public service would, therefore, be entitled to apply for these positions. The amendment seeks the deletion of the requirement that appeals officers would be officers of the Minister or of the Department of Agriculture, Food and Rural Development.
Those of us who have had dealings with the social welfare appeals system are very laudatory of that system in which appeals officers are drawn from the wider public service. This Bill, as currently drafted, means that appeals officers can only be recruited from the Department of Agri culture, Food and Rural Development. This is a small but important amendment and I urge the Minister to accept it.
On amendment No. 5, I am seeking the deletion of the phrase “the pleasure of the Minister” which is archaic and simply should not appear in modern legislation. I hope the Minister will agree to its deletion. Under the legislation as it stands, an officer could be dismissed at will or at “the pleasure of the Minister” but the acceptance of this amendment would result in a definite term of office being stipulated. It would also have the desirable effect of emphasising the office's independence. This is a reasonable and important amendment which would be welcomed by anyone working as an appeals officer under this regime.
Dr. Henry: I support these amendments, the first of which would go some way towards redressing my criticism that officers within the Department would be policing other officers. At least, there would be a possibility of people outside the Department being appointed if amendment No. 4 were accepted. The Minister conceded that the phrase “the pleasure of the Minister” harks back to grace and favour days and the phraseology contained in amendment No. 5 would be a far more suitable way of prescribing the period of appointment. It would also make the office appear more independent.
Mr. Quinn: I support amendments Nos. 4 and 5. I stated this morning that Senator Dardis would be interested in the report of the Law Reform Commission on plain language which was published yesterday. Therefore, I expect he will support the deletion of the phrase “the pleasure of the Minister” in amendment No. 5. The phrase, which sticks in my craw, is an exact replica of a phrase which appears in the social welfare appeals legislation. I am sure the Minister will find a way to meet our concerns.
Mr. Joe Walsh: Under the Bill as currently drafted appeals officers must be civil servants working in the Department of Agriculture, Food and Rural Development and they will be assigned to work in the agricultural appeals office. I am assured that social welfare appeals officers are recruited from within the Department of Social, Community and Family Affairs, not from the wider public service. Acceptance of amendment No. 4 would mean that the Minister could appoint any person to the position of appeals officer because of the inclusion of the word “persons”. Members of the party faithful and my local cumann chairman would be eligible to apply for the position – as it happens, my local cumann chairman would be a very good appeals officer. The wording in the amendment is somewhat loose.
 I am not averse to the members of the wider public service being eligible for appointment in this area as that would create a bigger pool of people from which to select appeals officers and would offer opportunities to people throughout the public service. A certain degree of interaction and cross-fertilisation – to use a hackneyed phrase – would not be at all detrimental. However, there are some industrial relations considerations which must be borne in mind and I must consult with staff associations and trade unions in this regard. Social partnership dictates that such issues must be discussed and I am prepared to give a commitment to the House that I will broaden the pool of eligible people to include people working in the wider public service, following consultation with the above organisations. The structure proposed in the Bill is identical to that which has been tried and tested in the social welfare appeals office for the past ten years.
I conceded that the phrase “the pleasure of the Minister” is an unhappy form of words which does not reflect modern English language usage and I am prepared to reword the provision. However, I am not convinced that the proposed rewording is the most appropriate. There is no need to prescribe a timeframe on an appeals office warrant of appointment as imposing strict time limits would interfere with the building up of a core of expertise in the cadre of appeals officers. Social welfare appeals officers do not have fixed terms of appointment on their warrant cards and I do not see any benefit in imposing a limit on such appointments.
Question proposed: “That section 4 stand part of the Bill.”
Mr. Quinn: I oppose this section which relates to the deputy director of agriculture appeals and would like to see it withdrawn entirely. My amendment No. 26 seeks to substitute the phrase “the establishment of an office to be known as the Director of Agriculture Appeals” for “appointment of appeals officers”. I envisage an  office closer to that of the Director of Consumer Affairs, Data Commissioner or Ombudsman. On that basis, it would not be the Minister who would decide who the director's deputy would be, rather it would be the office of the director. That is a much healthier way of handling this process to ensure it is totally independent rather than simply having it at the Minister's whim. If we are really to have an independent office, the appointment of a deputy director should not be handled by the Minister but by the director. I urge the Minister to consider that.
Mr. Joe Walsh: I do not wish to add a great deal to what I have already said. The wording is inappropriate, a little unhelpful and is certainly out of sync with modern usage of the English language. On the question of the director, the model we are using is the social welfare model, which I believe has worked well, and after ten years there is no clamour for its replacement or modification. The director of this office will be appointed on similar lines but the role will be extended to include the public service rather than just the Department of Agriculture, Food and Rural Development, which I intend to examine. That is the appropriate way to proceed in this regard.
Question put and agreed to.
Ms O'Meara: I move amendment No. 6:
In page 4, between lines 16 and 17, to insert the following subsection:
“(3) Regulations under subsection (2) which delete a scheme or part of a scheme from the Schedule shall not be made unless the regulation is laid in draft before each House of the Oireachtas and a resolution approving such draft is passed by each such House.”.
Senator Callanan spoke today and also on Second Stage about his concerns regarding the whittling down of the democratic role of the Oireachtas and the independence we give to bodies, not only this body but others also. The National Roads Authority springs to mind in that regard. It is important that the essential democratic role of a House such as this is retained in legislation. This amendment seeks to ensure that there is reference to the Oireachtas in the event of a Minister using his power of regulation to delete a scheme or part of a scheme from the Schedule.
The deletion of a scheme or part of a scheme from the Schedule is an important issue. The list of schemes is comprehensive and it potentially affects a large number of people. One could understand why the Minister would delete a scheme which is mentioned in the Schedule but is no longer in operation, but a situation could arise where a substantial scheme could be deleted for  some reason from the Schedule. As Members of this House, we should not only know about that but should have a view on it and have an opportunity to make that view known. I am sure the Minister will say that this provision is to give him ease of action in the event of a small scheme no longer being applicable and to make the bureaucratic operation a little easier. This is a small but important point.
Mr. Joe Walsh: Section 5 sets out the functions of appeals officers. They will deal with appeals under any of the schemes listed in the Schedule. The Bill provides that the Minister may amend the Schedule by making regulations. That raises the question of how these regulations are made and when a scheme is removed from a Schedule. As the Deputy knows, there are more than 20 schemes, including the deseasonalisation premium scheme and the suckler cow scheme.
Mr. Callanan: There are 28 of them.
Mr. Joe Walsh: I have no problem in principle with the proposed amendment but it is far in excess of what might be required in this instance. The procedure being put forward is normally reserved for major issues which require debate in the Oireachtas. Every time there was a change in the suckler cow scheme, it would have to go back to the Oireachtas and that would be a little cumbersome and unnecessary. For example, we used to have a compensatory payment scheme which generally was called a headage scheme. Recently that headage scheme was changed to an area based compensatory allowance scheme, which means the same except that instead of having payments on the headage, it is now based on area. The changeover has caused me some grief because it is like the old cliché, “If it is not broken, don't fix it”. We had no option but to change it and the changes are minimalist. The idea that one would go the cumbersome route of going back to the Oireachtas to make those changes is a little over the top. I assure Senators of my good faith in this matter. The only time a scheme or part of a scheme will be removed from the Schedule is when the scheme in question becomes obsolete.
It should be pointed out that the schemes change from time to time. All the old schemes will remain on the list for as long as applications are processed in the Department. They may not all be removed at the same time, but one or two of the 28 may be deleted from time to time. The effect of this amendment would mean putting down a number of draft regulations before the Houses of the Oireachtas. It would generate a whole sequence of events for which there is no real necessity. I have no difficulty in principle with that, provided fairly major undertakings are given, but in this case I assure the Deputy there is no need for that. It can be done by way of regulations. For that reason, I find it impossible to accept the amendment.
Ms O'Meara: It was not the intention of the amendment that the Minister would have to come back to the House if there was a minor change in a scheme. The amendment concerned a scheme or part of a scheme being removed from the Schedule. The Minister said he is acting in good faith and it would only be in the event of a scheme becoming obsolete that it would be removed. I accept the Minister's bona fides in that regard – I thought that is what he would say. At the same time he will accept that there is a specific point being made in the amendment. Considering what he said, however, I will withdraw the amendment.
An Cathaoirleach: Does Senator Dardis wish to comment?
Mr. Dardis: On the basis of the amendment being withdrawn, perhaps it would be better to say nothing.
Mr. T. Hayes: The Senator should say it anyway.
Mr. Dardis: The Minister made a reasonable point. Obviously these schemes change over time and schemes that are now important under the Schedule in time will no longer operate. I am sure the goat headage scheme in disadvantaged areas is of particular interest to the Minister and to all Members of the House. One could make the case that if there were many appeals in relation to a particular scheme, the Minister might wish to remove that scheme and not allow appeals, but he knows well, as we all know, that the vigilance of the farm organisations, the Farm Centre and others would ensure that could not happen. The requirement to consult the House, therefore, does not arise.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 and 7 agreed to.
An Cathaoirleach: Amendment No. 7 is in the name of Senator Quinn. Amendments Nos. 8, 10, 12, 14, 17, 19 to 23, inclusive, and 25 form a composite proposal. Therefore, amendments Nos. 7, 8, 10, 12, 14, 17, 19 to 23, inclusive, and 25 may be discussed together, by agreement.
Mr. Quinn: I move amendment No. 7:
In page 4, subsection (1), line 27, to delete “to the Director”.
The Minister will be aware of what I am trying to achieve in this amendment, that is, instead of referring in legislation to an appeals officer, the director should make the decisions. In section 8 I suggest that the words “the decision shall, on notice of appeal being given to the Director” be  deleted and that it read “on notice of appeal being given within the prescribed time and in the prescribed form, be referred to the Director”. That same concept is everywhere else. I know the Minister is anxious to almost replicate the social welfare appeals system but I do not think it is necessary to make things exactly the same if we can improve on it and it would be improved if the changes I suggest were included.
Amendment No. 12 suggests that “An appeals officer” be deleted in section 9 and that it be substituted by “The director or an officer acting under his or her delegated authority”. It is exactly the same concept. It would give a strengthened independence, even if it does not go as far as I would like it to, that is, as far as the Director of Consumer Affairs, the Ombudsman or the data commissioner. I will withdraw the amendments in the belief the Minister will reconsider them, give them his attention and that the provisions will be improved before the Bill is finally enacted.
Mr. Joe Walsh: I will certainly look further at these amendments. Our difficulty stems from the fact I set out to have a body replicating the social welfare appeals body in every respect, and I want to remain faithful to that concept. I want an appeals body which is seen to be independent and which provides an efficient service to the various clients. The social welfare appeals office has been doing this for a decade and its structure is based on a director who acts as chief appeals officer who assigns various cases to appeals officers who are independent in their functions and whose decisions can be reviewed by the director. The Minister will keep his nose out of it and will have no hand, act or part in the process. It would not be his or her role or function to interfere in any way with the determination of appeals. Therefore, the day to day operations would be under the exclusive control of the director and his or her officers, and I want to retain this structure. Accepting these amendments would mean no separation of functions between the director and the appeals officers, and their independence would be weakened as a result. However, I will further examine the amendments in the light of the case made by the Senator.
Amendment, by leave, withdrawn.
Amendments Nos. 8 to 11, inclusive, not moved.
Question proposed: “That section 8 stand part of the Bill.”
Mr. Dardis: I apologise that I could not contribute on Second Stage. I wish to raise the issue that the appeals officer can determine a case “as soon as is practicable”. Experience suggests to those of us who have had to deal with the Department that a time limit should be imposed. Section 10 says the Minister may issue guidelines with respect to the time within which a decision of an  officer should be notified to an appellant. It might be no harm if the length of time for an appeal was specified. The experience of those of us involved in these schemes is that the difficulty is often getting a decision, not the nature of the decision. Frequently one can live with the adjudication but getting it is a problem. Providing that it be made “as soon as is practicable” leaves it open ended. There is a very significant aspect to this as moneys due to the complainant can be held up for a very long time. In some cases these moneys are the only source of income for the farmer – on occasion they constitute the entire disposable income deriving from the farm.
Senator Quinn is correct in saying I noted what the Law Reform Commission said about the language used in legislation. The language in this Bill is reasonably clear and straightforward and the old campaign I conducted while on the other side of the House against the term “in relation to” is beginning to pay off. However, it still creeps in on occasion. Section 14(2) for example states “The Director . shall furnish to him or her information in relation to such matters .” What is wrong with saying “about such matters” or “regarding such matters“? I do not understand why we must include such jargon.
One difficulty with many of these schemes is the forms used. I have a third level qualification in agriculture and find it difficult to ensure my area aid form is filled in and returned accurately. I often wish that even a humble journalist was asked to cast their eye over these forms—
Dr. Henry: There is no such thing as a humble journalist.
Mr. Dardis: —to ensure the language used is clear. If that was done I suspect some of the cases with which the appeals body will have to deal would not arise.
Mr. Joe Walsh: The term “as soon as is practicable” in section 8(4) was referred to on a number of occasions on Second Stage. I understand the point being made very well as there is money involved and the length of time in determining an appeal is very important. We do not want bodies to have an indefinite time when considering and determining an appeal. I looked at other bodies, including the social welfare appeals body, which does not have a time limit. I also looked at An Bord Pleanála where a number of years ago an appeal could take months, or up to a year and a half. Projects, which could provide a few jobs in a village for example, were held up almost indefinitely. To address this they set an objective to get appeals through the system within a number of weeks. On Second Stage I stated I would draw up guidelines under the Bill to set such an objective, with a maximum period of 12 weeks. I wish it was far shorter, but was reminded by my very efficient and professional officers in the Department of the dangers of setting a statutory limit.  For example, under the REP scheme if two neighbours had a problem with a boundary ditch or if there was a problem with the local corporation or county council, the process could drag on for a while and there would be fairly serious difficulties if a statutory time limit was imposed.
Many of the problems clients have with the Department are fairly simple and are sometimes described as innocent errors. Some farmers wrongly identify the sex of an animal and may put the wrong entry on what is called the blue card. This is not done deliberately, but is a serious problem for the farmer as they could lose a considerable amount of headage or premia payments, with a two year deduction in some instances.
The most frequently recurring problem is the farmer forgetting to sign forms. He just fills up the form, posts it off and forgets to sign it. That causes problems. In all of those cases the turn around time should be quite rapid. I cannot specify it in the Bill itself but I will do so in the guidelines. I have searched for a way to make sure that turn around time is as short as possible. I have been advised that we cannot have a statutory length of time but the guidelines will be very tight in this regard.
Question put and agreed to.
Amendment No. 12 not moved.
Ms O'Meara: I move amendment No. 13:
In page 4, line 38, to delete “may” and substitute “shall, if so requested”.
At Second Stage we talked about the whole area of oral hearings. I have some experience of attending social welfare appeals and I believe the oral hearing is critical. It is an essential and very important event in an appeal. So much can be put on paper but many people cannot put the full story, particularly if some event has led to a mistake leading to an appeal. In my experience, the opportunity for a person to attend an oral hearing and fill in the gaps makes a huge difference.
I asked at Second Stage for clarification on what discretion the appeals officer would have in relation to holding an oral hearing. I am anxious that this amendment be accepted because if people request an oral hearing they should get it. They know when they need one. I cannot emphasise strongly enough the need to ensure that a person has the right to an oral hearing and to enshrine that right in this legislation.
Mr. Quinn: I support Senator O'Meara. She has articulated her point very well. I am sure the Minister will inform us if there are reasons it should not be done. A written hearing would involve costs and assistance in presenting the appeal whereas an oral hearing would be more accessible to everybody. The question of a hearing being held in private is in the same context.  It may be in the best interests of the appellant that it be held in private but having it as an oral hearing will strengthen people's ability to make an appeal.
Mr. T. Hayes: I support this for the same reason as Senator Dardis, particularly in relation to form filling. A person can make a case on paper but it is easier to explain orally a mistake in filling the form. The forms are detailed and cumbersome and I support the amendment for that reason.
Dr. Henry: Senator Hayes has made the point I was going to make. We are dealing with people who have already had problems with the written word so it would be wiser to allow them explain their case orally.
Mr. Callanan: I mentioned earlier that the words mentioned are exactly identical. There are two circumstances that may lead to no need for appeals. That happens if the appeals officer accepts the appeal the applicant has made and also if it is a totally ridiculous appeal.
Mr. R. Kiely: I am a practical farmer like Senator Dardis, yet my son and I once made a mistake and did not correctly identify the sex of our animals. We had to rectify it afterwards. There can be other mistakes in filling forms and I believe an oral hearing would be more beneficial to the farmer when it comes to those cases.
Mr. Joe Walsh: Section 9(1) provides that an appeals officer may hold an oral hearing. In a modern democracy oral hearings and a request for one is something of an entitlement. I know people will suggest there may be frivolous requests for a hearing but it is only if a person has bother with a Department that they will go through this procedure. In most cases we hope conscientious and fair minded officers will determine the appeal and send the money to the client. If that is not the case and a person looks for an oral hearing they are entitled to it. As there is such a difference between ‘may' and ‘shall' I propose to accept this amendment.
Amendment agreed to.
Amendment No. 14 not moved.
An Cathaoirleach: Amendments Nos. 15 and 16 are related and may be discussed together by agreement.
Ms O'Meara: I move amendment No. 15:
In page 4, subsection (3), line 43, after “oath” to insert “or affirmation”.
I put that in because I am a member of the All-Party Committee on the Constitution. I will not go into too much detail in the House but we did have a discussion in relation to this and I have been advised that the amendment may be neces sary because the oaths legislation allows affirmations only in relation to legal proceedings.
Dr. Henry: I support Senator O'Meara for the reason that I believe people should not take an oath frivolously, particularly if they are non-believers. It is better to give people the opportunity to affirm. The Minister is of course aware that some denominations believe it is wrong to swear an oath.
Mr. Dardis: At the rate at which the Minister is taking amendments I had better support this one. When I was on the other side of the House I had a lamentable record with regard to the acceptance of amendments. It may have been due to the Government of the time rather than my inability to argue my case.
Senator O'Meara has a reasonable point. I am a member of the same committee and she is correct that we have suggested it should be by oath or affirmation. It should not be by substitution of one word for the other. I do not expect the situation will arise often, if at all. As the Minister is in such a mood of largesse I hitch my wagon to the proposals for amendment. I will be very disappointed if the Minister does not accept the amendment. It will be known then that it was my intervention that ensured its rejection.
Mr. Joe Walsh: I think that good run is over. At first sight, these amendments seem to be uncontroversial. The advice I am given may be a little different from the advice given to Senator O'Meara. I have checked this matter with the Attorney General's office. My advice is that the courts are now accepting an affirmation and that extends to this office as well as to the courts. I see no reason why the agriculture appeals office should not cater for citizens who prefer this form of declaration. However, it should be noted that under the Interpretation Act, 1937, the word “oath” includes the word “affirmation”. Therefore, Senators can be assured that their concerns in this matter have already been met and there is no need to insert the word “affirmation”. The word “oath” for this purpose means oath or affirmation.
I will double-check just in case there is any difficulty between Senator O'Meara's advice and mine.
Ms O'Meara: In the light of the Minister's remarks, I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
Section 9, as amended, agreed to.
Amendment No. 17 not moved.
Mr. Quinn: I move amendment No. 18:
In page 5, lines 3 to 5, delete subsection (2).
 Amendment agreed to.
Amendment Nos. 19 and 20 not moved.
Section 10, as amended, agreed to.
Amendments Nos. 21 and 22 not moved.
Section 11 agreed to.
Amendment No. 23 not moved.
Ms O'Meara: I move amendment No. 24:
In page 5, line 30, to delete “of law”.
Amendment No. 24 relates to the section on appeals to the High Court which is obviously a standard provision in the legislation and appears in many Bills. In relation to appeals to the High Court, the Bill is specific in that one can only go to the High Court on a question of law. Why limit it to a question of law? Surely it has an extremely limiting effect. Would the Minister consider allowing appeals on any question that may arise?
Mr. Joe Walsh: I have a difficulty with this amendment. To accept it would involve a fundamental change in the rationale for setting up the appeals office. This stems from my original premise that this office should be identical to the social welfare appeals office.
The point in setting up an expert tribunal is to enable people who are specialists in the schemes and the issues involved to review decisions on the basis of expertise rather than having to gear up from first principles. Courts have to do this. By the time a decision has emerged from the appeals process, the issues will have been considered twice by specialists, once by the original decision-maker and once by the appeals office.
There is also provision in section 11(2) whereby the director may at any time revise a decision of an appeals officer if it appears the decision was wrong either in law or in fact. The purpose of the appeals process is to bring some finality to the matter. Obviously it is necessary to provide for error within the appeals process.
This is covered by section 12, which provides for appeal to the High Court on a point of law. If the appellant feels that the appeals office has made an error in law, and this includes unreasonableness or lack of fair procedure as well as misinterpretation of the rules, then he or she may appeal to the courts.
I feel that this is a preferable way to deal with these issues. There seems little point in building up this administrative appeals machinery if its decisions can be appealed on merits. If an appeal were to be brought to the courts on the merits of the case then the Circuit Court rather than the High Court would be the appropriate body.
Amendment, by leave, withdrawn.
 Section 12 agreed to.
Sections 13 to 17, inclusive, agreed to.
Amendment No. 25 not moved.
Sections 18 and 19 agreed to.
Schedule agreed to.
Amendment No. 26 not moved.WP leading adjustment
Title agreed to.
Bill reported with amendment.
Ms O'Meara: I ask for clarification here. The Minister has said to us that he will consider a number of amendments. Surely there is a strong case to be made for having Report Stage at another date in order to allow for that process? Otherwise, the Minister has no opportunity to come back to the Seanad in relation to those amendments.
Mr. R. Kiely: This Bill will go to the Dáil where amendments can be made and it will return here.
Acting Chairman (Mr. D. Cregan): There must be a sos for Members to put in amendments if they so wish and if the House decides. On Report Stage they are entitled to put amendments if the House decides, but perhaps there will be agreement between the Minister and the relevant Senators. The House must decide whether Report Stage is to be taken now or at a later date.
Mr. Quinn: I support Senator O'Meara in regard to the Minister's obvious intention to reconsider some of these items. We must give him a chance to do so. It is discourteous to the Minister to rush that decision. It would not be correct to take Report Stage now.
Mr. R. Kiely: We are anxious that Report Stage be taken now.
Acting Chairman: I must put the question.
Ms O'Meara: It is a discourtesy not only to Members on this side of the House, but to the Minister who has indicated that he will consult the social partners and unions on my amendment. Will members of his party not allow him to do that?
Mr. T. Hayes: In view of the amenable discussion we had on the Bill, we should give time for Report Stage. The Minister has been interested and amenable throughout the debate on the Bill.
Mr. Dardis: It is now almost 6 o'clock and the progress we would make in the time left would be limited. There will be a two-hour interval for the Private Members' motion and we could deal  with the remaining Stages when we come back at 8 o'clock.
Dr. Henry: There would not have been such agreement from this side of the House regarding the withdrawal of amendments if we thought this situation would arise. The debate on this Bill has been good-spirited. I was of the opinion that the Minister would look at the Bill before Report Stage. What is the point in bringing Bills to Committee when some Ministers do not accept amendments? At least this Minister is prepared to consider them. We might as well stamp ourselves as irrelevant if we progress as those on the Government side of the House want us to.
Mr. Joe Walsh: We adopted a positive attitude to the Bill on Second Stage and again on Committee Stage, and I was prepared to do a number of things and look at some issues. I want to get the matter finished as quickly as possible and I would agree to resume discussion of the Bill at 8 o'clock, but it would not allow me time to discuss matters with the Attorney General's office. It would also be difficult for my experts to complete drafting before 8 o'clock. There are two choices, the House can rely totally on my good faith and allow me make the amendments in the Dáil, taking into account the spirit of the debate on Committee Stage or, alternatively – I have no difficulty with this – we can come back to this House next week to deal with the matter.
Ms O'Meara: Our preference would be for next week.
Acting Chairman: Is that agreed? Agreed.
Report Stage ordered for Tuesday, 27 February 2001.
Sitting suspended at 5.45 p.m. and resumed at 6 p.m.
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