Dr. Kevin Smyth:

I thank the Chairman and the members of this committee for the opportunity to address them today with my colleague, assistant secretary Ms Eilis O’Connell, regarding the Agriculture Appeals Act 2001 and the work of the appeals office.

The programme for partnership Government provided for a review of the Agriculture Appeals Act 2001 to ensure the independence and efficiency of the office in dealing with appeals from farmers. In September 2017, the Minister announced the commencement of such a review through the establishment of a review committee to carry it out and to furnish a report. The report was to include recommendations on the legislation governing, and the future operation of, the appeals office and was to be completed by the end of that year. The process was to featureconsultation with relevant stakeholders.

The committee comprised Niamh O’Donoghue, former Secretary General, Department of Social Protection and chairperson; Padraig Gibbons, former chairman of Connacht Gold and former president of the Irish Co-operative Organisation Society; and Paud Evans, former principal officer in the Department of Agriculture. Written submissions were invited and 20 submissions were received by the closing date.

In February 2018 the report was published for consideration by the relevant stakeholders, including this joint committee, explaining that the recommendations were currently under consideration by the Department, particularly with regard to legislative changes that may be required to give effect to them. The consultation process that has been under way is now drawing to a close. To date, there has been a submission from this committee and we have had meetings with the director and a senior staff member in the appeals office, staff in the payments and entitlement areas and a recent meeting with six farm organisations after last week’s farmers’ charter meeting. This committee meeting will help to further inform the process.

We are aware through the committee's letter of 2 May that it has the following issues of concern: the status of the independence of the chairperson of the appeals panel; the independence from the Department of any legal advice sought by the appeals panel; and the validity of inspections that are not carried out in accordance with terms, conditions and guidelines of the scheme. Furthermore, the committee also indicated that its engagement will be ongoing in reviewing the legislation as it progresses through the Oireachtas. The Minister is interested in the further views of the committee and would like to ensure all interested parties have had their say on the contents of this important report.

There were 31 recommendations in total but I will highlight some of the key points in the report. The most significant recommendation is probably the introduction of an independent agricultural appeals review panel. Others include a fee to be set by the independent review panel for the progression of an appeal to the second tier; the Department should continue to broaden the pool from which appeals officers are recruited; a structured programme of knowledge and skills-based training and development to be put in place; the appeals office should publish a principles-based code of practice; the appeals office should put structures in place to ensure that appellants can be advised of the progress of their appeal; greater engagement by the appeals office with the farmers’ charter of rights monitoring committee; the appeals office should consider recording oral hearings and the possible use of video conferencing; the introduction of a plain English booklet giving details of the decision-making process may be given to all claimants; the time limit for submission of correspondence to be extended from 14 to 21 days; the appeals officer may have discretion as to whether to hold an oral hearing as necessary; arrangements are to be made to appoint a deputy director with potentially a greater remit; the Department should look at the robustness of its internal review process; the report of a finding by the appeals office should be timely and comprehensive in the interest of informing both the Department and the appellant; and the regulations should be amended to require both parties to submit a list of attendees that they intend to have at an oral hearing and that any new evidence should be submitted two weeks before the date of the hearing.

Subject to a positive decision by the Minister, certain of these recommendations can, in effect, be put in place relatively quickly. I would cite as possible examples areas such as the introduction of greater levels of training; the publication of more detailed information; a better emphasis on timeliness; and the procurement of additional IT resources etc. The biggest challenges arising from the recommendations, such as the introduction of an agricultural appeals review panel comprising the director of the appeals office and non-departmental staff, would require primary legislation to be introduced.

A preliminary legal view has also been put forward that the recording of proceedings would need a legislative change as section 8(2) of the Agricultural Appeals Act currently requires that hearings be held in private. The use of video recording and communication tools such as Skype would need to be carefully examined legally, particularly with regard to the use of personal information and GDPR ramifications. Consideration will also have to be given to the practical aspects of the recommended changes. For instance, there would be logistical issues and increased administrationarising from having four additional persons review each case. Currently, there is no second oral hearing and appeals to the director are based on fact or on law. The recommendations seem to make provision for the independent review panel to meet the parties again.

If I can paraphrase the consultation that has taken place to date, I would say that the groups that have given their views have been broadly supportive of the contents and recommendations of the report. The farm organisations spoke of the need to strengthen the independence of the appeals office and the importance of open access to an oral appeal. The appeals office itself gave the view that any changes must not compromise the authority and responsibility of that office and, in particular, of the director. The appeals office welcomed the recommendations of a six-month timescale for appeals and the use of a code of practice. Staff within the paying agency wanted greater certainty on the timescale of appeals and to curtail the late introduction of new evidence.

It would be remiss of me to suggest that all recommendations in the report have been met with universal agreement. The farm organisations are opposed to the introduction of fees for further appeals. Reservations have also been expressed about the use of recording and video conferencing from the point of view of the stress it might cause, the legal and privacy implications and its efficacy as a communications tool. I am happy to discuss these views with the committee.

Regarding the next steps, the views of all parties will be summarised and sent in a submission to the Minister on the best way to implement the report.

There will be an emphasis on those recommendations that can be put in place quickly. Definitive legal advice will be sought on the best way to proceed with those recommendations that require primary or secondary legislation. I thank the committee members for their time and we are happy to answer questions.