Jackie Cahill (Tipperary, Fianna Fail)
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I remind members, witnesses and persons in the Public Gallery to turn off their mobiles phones. The purpose of today's meeting is to continue with the pre-legislative scrutiny of the general scheme of the agriculture appeals (amendment) Bill 2024. The committee will hear from the Minister for Agriculture, Food and the Marine who is accompanied by officials.

Witnesses giving evidence within the parliamentary precincts are protected by absolute privilege in respect of the evidence they give to the committee.

This means that witnesses have a full defence in any defamation action for anything said at a committee meeting. However, witnesses are expected not to abuse this privilege and may be directed to cease giving evidence on an issue on the Chair's direction. Witnesses should follow the direction of the Chair in this regard and are reminded of the long-standing parliamentary practice to the effect that, as is reasonable, no adverse commentary should be made against an identifiable third person or entity. Witnesses who are to give evidence from a location outside the parliamentary precincts are asked to note that they may not benefit from the same level of immunity from legal proceedings as witnesses giving evidence from within the parliamentary precincts. They may consider it appropriate to take legal advice on this matter. Privilege against defamation does not apply to the publication by witnesses, outside of the proceedings held by the committee, of any matters arising from the proceedings.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. Parliamentary privilege is considered to apply to utterances of members participating online at a committee meeting when that participation is from within the parliamentary precincts. There can be no assurance on participation online from outside the parliamentary precincts and members should be mindful of this when contributing.

The committee will hear from the Minister for Agriculture, Food and the Marine, Deputy McConalogue. The officials accompanying the Minister are Ms Lynda O’Regan, director of agriculture appeals, and Mr. Pat Coman, principal officer at the agriculture appeals office. The Minister and his officials are very welcome to the meeting. I compliment the Minister on getting the proposed Bill this far. We hope we will be able to progress it as efficiently and quickly as possible. It has long been talked about and in gestation. I very much welcome that it has reached pre-legislative scrutiny. It is to be hoped that we can get it passed into legislation as quickly as possible.

I invite the Minister to make his opening statement, after which we will have a questions and answers session.

Charlie McConalogue (Donegal, Fianna Fail)
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I thank the Cathaoirleach and members for promptly putting this on the agenda of the committee and dealing with the pre-legislative work on the proposed Bill. As the Cathaoirleach stated, it has been on the agenda for some time and we are very keen to progress it through the Houses of the Oireachtas. Key to that is this initial engagement with the committee and the thoughts and feedback of members in respect of what we have proposed. As they are aware, the proposed Bill seeks to amend the Agriculture Appeals Act 2001 and establish an independent agriculture review panel.

The agriculture appeals office was established in 2002 to provide an independent appeals service for farmers who are dissatisfied with decisions of the Department of Agriculture, Food and the Marine concerning their participation in agricultural schemes. The mission of the office has been to provide an independent, accessible, fair, efficient and timely agriculture appeals service for scheme applicants. The independence of appeals officers in their functions to hear and determine appeals is enshrined in the Act and the office has provided an objective service throughout its 22 years of existence.

Since its inception in 2002, the office has handled almost 15,500 appeals and approximately 5,605 appellants have received improved outcomes in their cases during that period, with these cases being partially or fully allowed in favour of the farmer. Approximately one third of the appeals result in a decision in favour of the farmer. Following submission of an appeal, a file and statement is requested from my Department and, upon receipt of same, the appeal is assigned to an appeals officer. Appellants have the option to seek an oral hearing, or an appeals officer may require an oral hearing to be conducted to properly determine an appeal. Oral hearings may be held in person or by electronic means. Oral hearings are held in approximately 60% of appeal cases. When deciding an appeal, the decision of appeals officers can be to allow, partially allow or disallow an appeal. A decision of an appeals officer is final and conclusive except in three scenarios. First, where there is new evidence or facts or a relevant change in circumstances since the decision was issued, an appeals officer may revise their decision. Second, the director of the agriculture appeals office may carry out reviews of decisions of appeals officers based on errors of fact or law. Third, a decision of an appeals officer may be challenged in the High Court on a point of law.

A review of the agriculture appeals office and the Agriculture Appeals Act 2001 was carried out in 2017. The review examined a number of other bodies that provide independent appeals services, such as the social welfare appeals office, the Aquaculture Licences Appeals Board, the Employment Appeals Tribunal, the Students Grants Appeals Board and the International Protection Appeals Tribunal. The report of that review was published in February 2018. It is important to note that this review confirmed the independence of the agriculture appeals officers in the conduct of their functions.

The report made a number of recommendations, many of which are in place. These include the appointment of a deputy director, bespoke legal training for appeals officers, engagement with the farm bodies involved in the farmer’s charter of rights monitoring committee, formal induction training for newly appointed appeals officers, the publication of a code of practice for appeals officers, the holding of case conferences, and the holding of remote oral hearings for appellants. The review also recommended that, in order to provide greater assurance to stakeholders and underpin public confidence in the process, an independent agriculture appeals review panel should be established. The report further recommended that the panel should comprise a chairperson, include private individuals with technical and practical expertise, and include the director of appeals. The establishment of an independent agriculture review panel is also a commitment in the current programme for Government. This Bill puts in place the required legislation for the establishment of the agriculture appeals review panel. It is envisaged that the panel will assume the function currently carried out by the director of agriculture appeals, to conduct reviews of decisions of appeals officers based on errors of fact and-or law.

The 2018 review also recommended putting in place timeframes for the seeking of a review. Currently a review may be sought at any time. This Bill proposes to introduce a time limit of six months for the seeking of a review of the decision of an appeals officer in the event of new evidence or facts, or a change in circumstances since the decision was made. The Bill proposes a period of three months for the seeking of a review of a decision of an appeals officer in the event of an error in fact of law in the decision as proposed in this Bill.

On a separate note, the Bill also includes an amendment to the Fisheries (Amendment) Act 1997 to remove the existing requirement that the chair or members of the Aquaculture Licensing Appeals Board vacate their membership on reaching 70 years of age. It is separate but I am tying it into this Bill for the purposes of this minor amendment. That means that people will be able to sit on the board once they pass the age of 70. At the moment, if they are over 70, they cannot. That is not reasonable.

In summary, the main changes to be brought about by the Bill will be as follows. First, there is the establishment of a new independent statutory body to be known as the agriculture appeals review panel. Second, there is the introduction of timelines for seeking a review of a decision of an appeals officer. Finally, there is the removal of the 70 year age limit for either the chair or members of the Aquaculture Licensing Appeals Board, above which they currently have to vacate their office. I thank the Cathaoirleach for the committee's time today. I look forward to members' consideration of this legislation and, I hope, the committee's support for it. I believe it will be important in further enhancing the confidence of the farming community in the agriculture appeals process.

Jackie Cahill (Tipperary, Fianna Fail)
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Before I go to members, the Minister stated, "The Bill proposes a period of three months for the seeking of a review of a decision of an appeals officer in the event of an error in fact of law in the decision as proposed in this Bill." He further stated, "This Bill proposes to introduce a time limit of six months for the seeking of a review of the decision of an appeals officer." Why is there a differential in the timeframe?

Charlie McConalogue (Donegal, Fianna Fail)
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The reason is that an error in fact of law would be obvious quicker whereas a change in circumstances might happen a few months after and might not be as obvious at the start. That is the reason for the difference between the three months and the six months being proposed here.

Jackie Cahill (Tipperary, Fianna Fail)
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Sorry, Minister, I do not fully understand.

Charlie McConalogue (Donegal, Fianna Fail)
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The Bill proposes to introduce a time limit of six months for the seeking of a review of the decision of an appeals officer in the event of new evidence or facts or a change in circumstances since the decision was made. Where a review is sought, that would go to another appeals officer on the 12-person appeals board for consideration. That is where there has been a change of circumstance or new evidence or facts have emerged. More time is being given if new evidence or facts emerge, while at the same time putting a limit on it.

Jackie Cahill (Tipperary, Fianna Fail)
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Would a fact of law be an example?

Charlie McConalogue (Donegal, Fianna Fail)
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A fact of law is where someone believes the law was not applied properly, or believes the facts were not properly reflected and the decision does not stack up in the face of the facts that the person presented or does not stack up in regard to the application of the law to the decision. In that case, at present, people can appeal it to the director of the appeals office. Under this new system, they can appeal it to this new review panel that we are setting up on a matter of fact or a matter of law. There is also the capacity, where someone believes that circumstances or the facts have changed, to seek a review from one of the other appeals officers on the appeals board. The person is not taking it to the director, as is the case at the moment, or to the new review panel that we are setting up. Before people go to that stage, they are actually seeking a review of the appeals officer’s decision from another appeals officer who did not make the original decision. The person is seeking that review on the basis that he or she believes circumstances have changed or facts have changed, not that the facts were wrong in the first place but that they have actually changed.

Jackie Cahill (Tipperary, Fianna Fail)
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There is new evidence.

Charlie McConalogue (Donegal, Fianna Fail)
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Yes.

Jackie Cahill (Tipperary, Fianna Fail)
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With the two different timeframes, there could be some confusion. A person will just see that he or she has a right to appeal on this. I am worried that someone could get caught and might not get their paperwork in on time due to thinking they have six months when they only have three.

Charlie McConalogue (Donegal, Fianna Fail)
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I take the point.

Jackie Cahill (Tipperary, Fianna Fail)
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I fully approve of the timeframe but it might be better if we just had one timeframe rather than two. I call Senator Boyhan.

Victor Boyhan (Independent)
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I welcome the Minister. The Bill puts in place the required legislation to establish the agriculture appeals review panel, which is good. I have a few comments. From farmers who have been in touch with or come before the committee, we know they are very anxious to see farm representation on this 12-person appeals board. That is a message that has come loud and clear to us all, so the Minister might bear it in mind. Clearly, people will need to have the benefit of experience and practical knowledge of agriculture. That would be a great boost and would send out a very clear message that we are listening to the stakeholders. That is one point.

I welcome the review appeals timelines, which are also important. The Chair touched on another issue. A word we are hearing is “simplification”, which is now the buzzword in agriculture, from what I can pick up. Do we need to simplify this? Absolutely. When we are explaining, we are losing, so we need to keep it simple. If it means an appendix to the Bill, so be it, but we need to be very clear in how we are explaining it. Many problems can be avoided if we have clarity, whether that is clarity of purpose, function or thought process. That is very important. We need to simplify this and use the simplest language.

We need to set out the appeals process. To take the case of the independent planning appeals board, people cannot overturn the ultimate decision of the appeals board but they can judicially review it if the process has erred or strayed. We need to cover that off. Sometimes it is not necessarily the outcome and although many people are not happy with the outcome, they can do nothing about that, which is fair enough and that is what an appeals process is. Nonetheless, it is important that we clearly set down what redress or relief people can have if the process has erred. I am sure the Minister understands what I am saying. There is an issue.

The Minister made a point that is key to the success of this legislation. It has to be independent, accessible, fair, efficient and timely.

The Minister made those points in his opening statement. It is part of the messaging about clarity.

Turning to the issue of agriculture, are there any other opportunities for amendments? The Minister highlighted one relating to the 70-year-old age limit. Is that the only one he deemed necessary? Are there no other opportunities? I acknowledge he does not want to confuse the issues here. That is one aspect he wants to tag onto the Bill and he has explained the rationale of that.

I am generally supportive of the Bill. The key message is simplification, clarity, explaining the processes clearly and bringing on board representatives of the sector because that will be critical for the buy-in and the success of the appeals process. I wish the Minister and his officials well in regard to the Bill.

Charlie McConalogue (Donegal, Fianna Fail)
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I thank the Senator for his support for the Bill. The amendment regarding the 70-year-old age limit is a sort of left-of-field idea I came across. I felt the age limit was not just, so I said the next time I had an opportunity, I would seek to have it amended and I have incorporated that into this.

Overall, as I said, the 2018 report gave a strong vote of confidence to the independence of the appeals process we had in place. It gave a number of recommendations otherwise, most of which have been progressed, but also suggested it would be helpful to establish the final post-review panel to take over the role that is currently the role of the director. The Bill will address that well. I am open to hearing feedback, such as the Cathaoirleach’s point regarding dates, and considering those points. An important part of prelegislative scrutiny is that we come forward to committee members and they road-test it, bring their own sense and perspective to it and feed that back and then I will consider whether the views are merited. By and large, I always try to accommodate them and, in fairness to the members, there is normally merit to what they propose. I thank them for that.

Victor Boyhan (Independent)
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If I could add to that, a lot of this again comes up in the context of process, fairness and engagement. It brings me back to that point, which I will not open up today for debate, about the farmers’ charter. That is the recurring theme and it is the book about which farmers want to be able to say this is all set out, with processes and fairness. I know the Minister is working on it and I do not propose we discuss it today but I would appreciate if we could be kept updated as a committee as to how that is progressing, given it is one key issue that keeps coming up. There are farmers’ charters throughout the European Union. They rely heavily on them and they are quoted extensively in national parliaments and by farmers’ representative bodies. They say they are working on it and I know there are some outstanding issues. As I said, I am not asking the Minister to do this today, but I ask that we be kept up to speed on that process. It is a really important document that will send out a clear signal from central government, the Minister's Department and this committee that we are serious and that it is not lip service but is embedded in a charter for farmers.

Paul Daly (Fianna Fail)
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I welcome the Minister and his officials and compliment him on bringing the Bill to this stage. The review of the 2001 Act has been ongoing for a long time. I recall we had many wholehearted discussions on it during the previous committee. I usually sat in this corner, with the Minister by my side. It would be remiss of me not to mention my former constituency colleague, Willie Penrose, who was very vocal on this issue in particular at the previous committee. It is positive to see it now at a stage where we are conducting prelegislative scrutiny.

I welcome the Bill and the merits of it. I am fully in agreement with it. I have a couple of questions, which mainly come from the interactions we had at our previous meetings on this issue with the farming bodies. They queried how we will maintain independence given the chairperson will be a ministerial appointment. They would have liked to see a scenario where the board, once appointed, would pick its own chair. I am not asking for that but it was raised with us. Within that, the bodies made strong arguments for the inclusion of farmers’ representatives on the board as per a follow-on from the farmers' charter. Those were the asks the farmers' associations had and perhaps they could be tweaked in some way. They wanted to highlight the issue of independence. The argument at the moment for the need for the independent appeals board is that most appeals officers tend to be retired departmental officials who then hear appeals against former colleagues. It was argued that if the chairman is a ministerial appointment, that will remain nearly the status quo. It is something that could be taken into consideration.

The other issue the farming bodies raised, with which I would be more in agreement and perhaps it could be incorporated into the Bill, relates to remote hearings by electronic means at the discretion of the appeals officer. There should be some provision such that there can be remote or electronic hearings at the discretion of the appeals officer but only with the agreement of the appellant. Not every farmer has the same secretarial back-up or the same technology to undertake an appeal online where the official side can submit documents and so on. If the farmer or whoever did not have secretarial back-up or access to the same technological services and was working off, as I do, paper, there could be a mismatch.

It would need to be stated that it could only be electronically held at the appeals officer's discretion with the agreement of the appellant.

I welcome the change being made to the Aquaculture Licences Appeals Board. It would be disingenuous of us, as politicians, not to warmly welcome that because we are all beating the drum at the moment for school bus drivers over 70 to be allowed to continue drive. If we think somebody over 70 can drive a school bus, then he or she can certainly sit on an appeals board. That has to be welcomed and it was ageist for a limit to have been written in there in the first place. I suppose it was written in at a different time and we could not write that into any rules or regulations in the present day.

The other issue that came up with the farm organisations was the timescale. When somebody has gotten as far as an appeal, it means he or she has been waiting for money for a while. If the appeal is ultimately successful, that means that the person has been left in need of money for a period through no fault of his or her own. The longer it drags on, the greater the hardship. I look forward to seeing this up and running and operating on as tight a timescale as possible.

Finally, something was said to me recently and I would like the Minister to comment. A rugby analogy was made with reference to the new bunker system, whereby the referee can give a yellow card but the final decision is transferred to an independent third party. A lot of commentators say that referees are not making the decisions any more or at least, not making a lot of the decisions that they could make. While I welcome this move, which is well-intentioned, I would not like to a similar situation to arise whereby there is an inspector on a farm and there is grey area or a 50:50 situation about which the inspector might normally have told the farmer to do X, Y and Z and he or she would be out the gap this time. I would not like inspectors to start feeling they have the safety net of an independent appeals process and then when a 50:50 situation arises, they opt not to pass and the farmer has to bring an independent appeal for somebody else to make the decision. If that attitude was taken, we could end up with more appeals resulting in a backlog and the timescales I mentioned earlier might not be achievable. It was an interesting comment that was made to me and it got me thinking about it. When watching the rugby, people will hear a lot of commentary about the fact that referees will not make decisions any more because they know that somebody who is independent of them will make the decision for them. I would not like to see that situation arising where we have more penalties being applied because officials decide they will not make the decision, that it is a 50:50 scenario and they will let someone else decide on it, given that the facility is there and the process is independent.

Jackie Cahill (Tipperary, Fianna Fail)
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Just before I go back to the Minister, it is absolutely essential that the in-person option is retained. I have done a good few appeals with different people and I would much rather look an appeals officer in the eye than engage remotely. If someone was doing it remotely, he or she would not fancy his or her chances of winning the appeal.

The in-person option is essential. Obviously if someone wants to do it remotely, that option should be available but the in-person option must be retained because there is nothing like face-to-face contact when explaining a situation.

Charlie McConalogue (Donegal, Fianna Fail)
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I thank the Cathaoirleach. I thank Senator Daly and acknowledge that this is something he has supported over the last number of years too. On the Senator's point about the independence of the chair, the 2018 report indicated that the system was independent and robust but that this legislation could strengthen and add to this by changing the role that is currently done by the director of the appeals office to this review panel. At present the director of the appeals office is appointed through the Public Appointments Service and the appointment is signed off by the Minister. The director is Ms Lynda O'Regan, who is seated on my right. There are 13 appeals officers on the appeals panel and each is responsible for dealing with the separate appeals. A competition takes place to choose the deputy director of the appeals office from among the 13 appeals officers. Mr. Pat Coman is the deputy director. The director is appointed by the Public Appointments Service separately from the 13 appeals officers.

Where there is an appeal on a point of law or fact to any of the decisions of the appeals officers, the director of the appeals office decides the appeal. There are between 25 and 30 of such appeals every year. This legislation will mean the role of the director in deciding these appeals will transfer to the review panel. It is, therefore, another step of independence. The members of the panel will be appointed by the Minister. I expect that will be done by seeking expressions of interest. We have made a commitment to ensure there is farmer representation on the review panel. Having people with practical experience of farming is a key aspect of it. The Minister, as part of that, will appoint the chair of the review panel. It is the Minister who appoints the chair of many boards, having considered who he or she feels would be a good competent and independent person to give oversight. I do not see that as in any way compromising the independence of the review panel because it is already independent of the appeals panel. Either the director or deputy director will sit on the new review panel. However, the director or deputy director will not have had any previous input in the initial decision of the appeals officer because that is done separately by the appeals officer. The appeals board and the new review panel will be substantially independent of each other and there will be gaps between them. Having the Minister appoint the chair will not compromise that independence.

Senator Daly stated the decision to have remote hearings should be done with the agreement of the appellant. I agree and that is an adjustment we will make in the legislation. The committee should include such provision in its report because it makes sense. Including it in the legislation would not mean it would be the only thing offered. The intention is to have it there as an option should the appellant wish to avail of it. It is important that we refine the legislation to make it clear that remote hearings will only be held where appellants wish to have one and it would not be the only option available to them but would only be provided at their convenience and to suit them.

I agree there is a need for timely decisions.

Last year about 50% of the decisions made by way of the appeals office with appeals officers would have been completed within three months of the appeal being submitted. The average time was about six months. It is important that those timeframes are kept as concise as possible because it is important that people get timely decisions. On the question of whether appeals are being kicked up the line, as such, or kicked up to the video referee, there is no evidence of that and I would not agree it is happening. The appeals officer has to make a decision. Every appeals officer wants to make sure that the decision is robust and is appropriate because naturally there can be some issues. If the officer is making negative decisions, for example, and the negative decisions being appealed by the applicants to the appeals panel are getting overturned more than they should be then this is highlighting for that appeals officer that he or she is making decisions that are being overturned because they are not robust. I would not see any incentive in that. There has never been any evidence of that either. There is no sign that this is the case given that at the moment, on a point of law or on a factual basis, there are only 25 to 30 currently that go as appeal to the director.

Tim Lombard (Fine Gael)
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I welcome this very important legislation. I wish to ask the Minister about the timelines for the legislation. We are now in the last day of February and March is a busy month. We are looking at a situation with unusual timing regarding the election cycle. Does the Minister believe he has enough time to get this legislation through the hoops of the Houses of the Oireachtas and signed taking into consideration the timelines we have in the legislation before us?

Charlie McConalogue (Donegal, Fianna Fail)
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I believe that we do. It must go through the various Stages, including in the Seanad, but this piece we are doing here now with the pre-legislative scrutiny is important. Generally there is broad acceptance of the Bill and that it will have broad support. I am certainly open to the committee members' views on how we can be sure the legislation will do the job as effectively as it should. That being the case I do not expect this to be bogged down in the Dáil or the Seanad for hours on end with significant debate. I want to make sure it is as acceptable to people as possible. That being the case in the Seanad and the Dáil we should be able to move it through pretty promptly. Committee Stage will be done at the committee.

Tim Lombard (Fine Gael)
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Is the Minister hoping to get this passed before the summer recess?

Charlie McConalogue (Donegal, Fianna Fail)
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If we can. I would see that as entirely possible. Obviously it will depend on what the other priorities are in the legislative schedule. I will certainly be making the point to the Seanad and Dáil Whips that I do not believe it will take a big chunk of time because I would be hoping there is broad acceptance and therefore we should be able to move it on and get it scheduled on the basis that it will not need too much time. It should not be the case that it would see other legislation delayed as a result.

Tim Lombard (Fine Gael)
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With regard to the 70 years of age issue, a topic that is appropriate given we have also highlighted the school bus driver issue this week, as Senator Paul Daly has said, are there other issues within the Department of a 70 year age limit that the Minister might look at regarding other Chairs and other boards? Is that just a unique one or are there more out there?

Charlie McConalogue (Donegal, Fianna Fail)
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It is a unique one as far as I know but it is the only one that has been brought to my attention. If there are any other instances I would be quite happy to amend it and make sure we address it here. I do not see any role for it. If we were to apply that rule to Oireachtas committees there could be a good few across the Houses of the Oireachtas who would not be able to attend the committees so I do not see why we should prevent people sitting on many of these other boards.

Tim Lombard (Fine Gael)
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A colleague, former Deputy Willie Penrose, always made the point about how the appeals office operated regarding legal advice that it received. He made the point that the legal advice was coming from the Department of Agriculture, Food and the Marine and that the Department was involved to some degree.

Can we get clarity regarding the independence of the entity itself and whether it is external legal advice that is used by the appeals committee or whether it is internal Department of agriculture legal advice that will be used for cases? The former Deputy had a very strong view on this previously. I think the Minister sat with him for many months here. He might clarify where that legal advice comes from.

Charlie McConalogue (Donegal, Fianna Fail)
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The appeals office uses the Chief State Solicitor's office and the Attorney General's office only for legal advice.

Tim Lombard (Fine Gael)
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Okay. I thank the Minister.

Charlie McConalogue (Donegal, Fianna Fail)
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The Bill, as drafted, is what is presented, but obviously it is at pre-legislative scrutiny stage and the final Bill is something we can reflect on further. One of the key objectives here is to ensure that as part of the review panel there is representation of people with practical experience of farming. That will certainly be the way I proceed to set the board up. As to how we reflect that in the legislation and in the legal language, that is something I intend to look at a bit further too before we present the final Bill on that particular point. It is key that coming out of this we have people with practical farming knowledge. That is not necessarily important for the independence of it, but for confidence in it. Farmers must feel there are people on the panel who get farming. It is not necessarily something that would have an impact on the decision, because the decision has to be made, but it is an important element and ingredient to have in that final review panel. Certainly where the composition of the panel is concerned, having people with practical farming experience is going to be important and it is something I am looking at further with respect to the legal drafting around that.

Charlie McConalogue (Donegal, Fianna Fail)
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Is that the number with practical-----

Charlie McConalogue (Donegal, Fianna Fail)
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The number overall is five, including the director. The legislation also provides for regulations to be made to define further the makeup. It is something I will potentially be able to do in the regulations, that piece around the practical farming aspect. If it is not necessarily in the primary legislation, we will put it into the regulations. That is the key objective and output here. The number overall is five, including either the director or deputy director. The panel can also sit in divisions of three.

Charlie McConalogue (Donegal, Fianna Fail)
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Three would have to be present for any decision.

Johnny Mythen (Wexford, Sinn Fein)
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The Bill is generally welcomed by all the agricultural organisations and bodies. We spoke to a lot of them. Everyone has raised the issue of representation.

That was one of the main things.

There are a few other things. The Minister talked about the wishes of the appellant. I think someone should be allowed to accompany them if they want; it should not just be one person. There is no mention of disability in the whole system. There could be a person who has hearing or sight loss. That should be built in.

One of the other main things that was put across to us was there should definitely be a policy of a force majeureincluded in it. We had a situation, for example, where a farmer’s wife was dying of cancer. He could not turn up to the appeal but yet he was fined. That definitely must be included in the policy.

The "timely fashion" was presented to us. We should have specific dates for the completion of the review, not just state "between three months and six months”. Once a review starts, there should be a specific date for it to finish. That gives clarity and security to people who are waiting on an appeal. Often, they are worried.

I am not sure about this, and the Minister may forgive my ignorance on it. Why does it have to go to the High Court? A small farmer going to the High Court to appeal will not happen. It is thousands and thousands of euro. Can it be held in the District Court or Circuit Court? Is it possible to do that?

In addition, obviously the whole system has to be fair, transparent and without prejudice. That is basically what was put forward to us and those are the questions I have.

Charlie McConalogue (Donegal, Fianna Fail)
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On somebody accompanying the person, we provide for that in the legislation. The person can represent themselves or can have somebody represent them on their behalf. I presume we mean both the appellant and the representative can be there at the same time.

Johnny Mythen (Wexford, Sinn Fein)
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It does not state that. That is what I am talking about - at the same time.

Charlie McConalogue (Donegal, Fianna Fail)
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Basically, at the moment for an oral hearing, it states “An appellant may represent himself or herself or be represented by another person at the oral hearing of his or her appeal.” I take the Deputy’s point. That could well be read like an either-or as opposed to-----

Jackie Cahill (Tipperary, Fianna Fail)
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In practice at the moment, a consultant would often come with them and they might ask to bring another person as well. Therefore, perhaps that could be broadened. I am not saying they can bring a whole circus but to have three would not be extravagant. In the vast majority of cases, they bring a consultant. In many cases, they will ask for a political representative to come with as well, or not necessarily a political representative but it could be someone else with a bit of expertise, such as a farm organisation and so on. They would have two people and themselves, which is three in total. We could broaden the Bill to allow the appellant have themselves and two others.

Charlie McConalogue (Donegal, Fianna Fail)
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That has always been allowed. Section 8(4) indicates “An appellant may represent himself or herself or be represented by another person at the oral hearing of his or her appeal.” The point after that states, “Where an appellant is represented by another person at the oral hearing of his or her appeal, the appeals officer hearing the appeal may examine the appellant, if the appeals officer considers it necessary.” That reading would mean that the intent is that both could be present. That is my reading of it. Perhaps it is something we should look at to clarify to make sure it is clear that they can bring-----

Jackie Cahill (Tipperary, Fianna Fail)
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Two supporting people. One does not need any more because we do not want a circus either.

Charlie McConalogue (Donegal, Fianna Fail)
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In some cases now they bring more than that two.

Jackie Cahill (Tipperary, Fianna Fail)
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I think two is reasonable - your consultant and someone else.

I would be happy with that in legislation because too many can only diversify everything.

Charlie McConalogue (Donegal, Fianna Fail)
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If the situation were particularly tricky, the appellant might need more. We could leave it, though it could be said that-----

Jackie Cahill (Tipperary, Fianna Fail)
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There was a case highlighted to us the other evening where a farmer was fined in 2023 relating to something that happened on his farm in 2019. It was to do with the level of phosphorous in the feed he was feeding to cattle. It was very intricate and complicated. In a case like that, a few different witnesses might be needed. It was a big bone of contention that four years after the event he could get a letter in the post saying he were being fined for his practice in 2019. Those rules on the level of phosphorous in feed and so on are very complicated and hard enough for any individual farmer to calculate. That was just an individual case that was highlighted with us here last week when we met with the farm organisations. As regards a technical case like that, this should be left open. I do not think anyone will abuse it. Too many around the table will only confuse the issue, so not to be too definitive-----

Charlie McConalogue (Donegal, Fianna Fail)
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It is best to leave it a bit open-ended but make it clear that people can have additional representatives with them. The committee may want to flag that. I will reflect on it further but I would be happy to get the committee's sense of it as well.

Jackie Cahill (Tipperary, Fianna Fail)
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We can put that in our report.

Charlie McConalogue (Donegal, Fianna Fail)
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Yes, that would be good.

In response to Deputy Mythen, force majeure is already built into the appeals system, so you can-----

Jackie Cahill (Tipperary, Fianna Fail)
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I will make one point on that before the Minister replies. At the moment, force majeure applies to the applicant for the premium, for whatever scheme it is. In some cases, the person doing the work on the farm might not necessarily be the applicant for the scheme. A younger person could be doing the work. If the younger person faces a force majeure situation, it is not covered. It applies only to the applicant. The point being made to us that if it can be shown that another person was doing A, B or C on the farm and that they have a force majeure, whether it is sickness or whatever else, the force majeure should be broadened to cover that scenario.

Charlie McConalogue (Donegal, Fianna Fail)
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I take the point the Chair is making, but it is a different point from saying a new force majeure would be considered at the review panel stage, at the very final point. When people get to that very final point, that review panel stage, they are appealing on the basis of a point of fact or a point of law. That point of fact could be, for example, that they do not believe that force majeure is being applied appropriately and, in terms of the initial appeals officer's decision, that he did not apply force majeure appropriately. They are then going to the review panel saying, "We do not believe force majeure was properly treated here." However, as for the idea that a new, separate force majeure would be set up and, at the very final point of the appeals system, introduce basically a new ground for appeal, the whole thing is basically starting over again then. It has gone through the whole appeals system but that now, at the very end, a new type of force majeure can be considered. That would be different. That is not the purpose of the review panel.

As regards that issue, two points need to be considered. It needs to be considered what the grounds for force majeure are in the first instance, as regards the terms and conditions of the schemes, that is, that the force majeure terms and conditions are being got right. The next piece is not only the review, which can be done in the Department, but also the appeal, which is done by an appeals officer, who is then able to consider the appeal against the force majeure criteria. That is where the force majeure gets applied or not. If it is not applied correctly by the appeals officer, there is the option to appeal to this new review panel to say, "We do not believe the appeals officer made a correct decision based on the force majeure criteria."

Paul Daly (Fianna Fail)
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Is the Minister saying that could be written in the farmers' charter and would then have a lifeline up along-----

Johnny Mythen (Wexford, Sinn Fein)
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May I make a point to the Minister? Force majeure can happen anytime.

From the time the appeal happens, a person can experience a force majeuresituation. It is not right to say that a whole new review is being started because people are people and things can happen. A person could, God forbid, get bad news tomorrow morning. He or she could go to the doctor today and get a phone call next week with bad news or whatever. That is the purpose of it; a force majeureis a force majeure. It is not something that people just invent or use. It is important and should be built into it.

Charlie McConalogue (Donegal, Fianna Fail)
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I take the Deputy's point but I think that is covered, currently. In the case of a force majeure, where circumstances or facts have changed after the appeal is made, a person can seek an appeal to another appeals officer on the basis of a change of circumstance or facts.

Johnny Mythen (Wexford, Sinn Fein)
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Is that in the Bill?

Charlie McConalogue (Donegal, Fianna Fail)
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It is in the current system.

Johnny Mythen (Wexford, Sinn Fein)
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I am asking if it is in the Bill that is being put forward.

Charlie McConalogue (Donegal, Fianna Fail)
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No, because that is where the option is. What the Deputy described is provided for. For example, if an appeals officer makes a decision the appellant does not agree with, because his or her circumstances have changed further or because new evidence has come to light, a further appeal can be made to another appeals officer on the appeals board, or to the same appeals officer, with that additional change of circumstances or information. It can be considered at that point. If the appellant is still not happy with the outcome of the new decision made on the new evidence or circumstance, he or she can appeal further to the review panel and the review panel will consider if that was right or not.

Johnny Mythen (Wexford, Sinn Fein)
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I thank the Minister. I asked another questions on the courts.

Charlie McConalogue (Donegal, Fianna Fail)
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A judicial review at the High Court is an ultimate option. It is a safeguard for all legal processes, basically. The High Court is the only place where a judicial review can be taken If an appellant chooses this option, it would be a judicial review of the process, rather than a further appeal on a fact as such. It would review whether the process was fair or not. We cannot prevent somebody from doing this but the system is set up to discourage it. It tries to avoid that, if it all possible, by ensuring there is good oversight and a good appeals system within an appeals system along the way. The Ombudsman is a separate option as well and one which we would expect people to consider. It is not designed that way but it is standard.

I take the Deputy's point on specific dates by which appeals must be finished. It is important that they are dealt with expeditiously. However, if a definite date was put in there and there was a particularly complicated scenario that was difficult or tricky and required a lot of further examination, in an extreme circumstance, it could fall foul of that fixed-date legislation. That is the caution I have on the Deputy's point, but it is important that they are done in a timely manner. For example, in planning law, once a planning application is made to a county council, there is a date by which the planning authority must make a decision or revert for further information. However, a request for further information will always kick off a six-month period. In tricky circumstances, a hard deadline creates a lot of problems. Promptly dealing with these appeals will be important but, at the same time, I caution against putting a hard deadline in the legislation itself.

I wish to make a point around the five-person independent review panel, which the committee will consider. I have no doubt that this is something the committee will consider. The panel includes the director, or the deputy director in his or her place. The actual decision can be made by three of the five members. The director, or deputy director, has a vote as one of those three. I am aware that this was raised in previous meetings that the committee had as part of its pre-legislative scrutiny.

The director and deputy director of appeals are not involved in the decision of the appeals officer. The decisions of the 13 appeals officers are made separately, without consultation with the director or deputy director of the appeals office. It is set up that way because the director does the appeals, these reviews, at the moment. We are now setting up a new system to do that. For the director to be able to do those reviews, it is not appropriate for him or her to be involved in the initial decision or consideration of the appeals office because he or she will do the final review. A similar scenario will now apply in respect of the new five-person review panel. The director and deputy director will not have been involved in the appeals officer's decision and will be coming to the issue with fresh eyes as members of the five-person panel. It is considered appropriate for them to be a part of the decision-making process because they are coming to it without having been involved in the initial decision. I know that was raised by-----

Jackie Cahill (Tipperary, Fianna Fail)
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This is the kernel of the issue and the only place I think there could be any disagreement over the Bill. There is mention of a five-person panel that can operate with as few as three members. Should we not have a seven-person panel to ensure we have a better chance of having five people, rather than three people, at the appeal? If we stick to a five-person panel, there may be various reasons people will be unavailable. Perhaps they might be away. If we had a pool of seven from which to pick, would we have a better chance of having a broader appeal board? We have been looking forward to this Bill for a long time but for this to work well, it is important that farmers have confidence in it. That is, in fact, essential. We can make comparisons. There is an appeals body there in respect of TB at the moment and there is an appeals body for live valuations. That works reasonably well and the farm organisations are able to put people onto that panel. The Department obviously has people on it too and it works well. We have here the bones of very good legislation. In fact, more than that, we have a lot of flesh on the bones of very good legislation here. I just feel the panel should be composed of seven people and the farm organisations should have the right to nominate whatever amount of members the Minister thinks appropriate. That would give enormous credibility to the independence of the process. At the end of the day, farmers have been looking for an independent appeals body for a long time. We must have a mechanism whereby they have representation. I think five panel members is too few. For various reasons, people may not be able to make a hearing. We should consider operating a panel of seven. I am not saying that all seven should attend. We could have a panel of seven members and a maximum of five would be in attendance. It was a common theme coming across from the farm organisations when their representatives were here last week. They stressed the independence of the panel and the need for them to be represented. I feel that a seven-person panel would allow for that. I fully accept that the chair of appeals and his or her deputy would not be involved in the original hearing and would be coming to an appeal with a fresh pair of eyes. However, the message came through to us clearly at our meeting on last Thursday morning that for the confidence in the independence of the panel, farmer representation is paramount.

It may not be covered by the Bill but I made a point to the Minister about the fact that force majeure only applies to the applicant. That needs to be looked at. One or two cases have come across my desk where the applicant is not doing the farming but force majeure happens and affects another family member who is doing the actual farming. Force majeure only applies to the person who applies for the payment. That needs to change if it can be proved conclusively that the person affected by force majeure is the person who is running the farming operation.

It is probably not within the remit of the legislation we are talking about but putting it into the farmers' charter or doing it in some other way should be looked at. We will be putting our observations as to how we would like to see the panel working and so on into the report. The Minister can see that there is cross-party support for this around the table. We all welcome it. We just want to put a structure in place so that, when the legislation is enacted, nobody will be sniping at it. The independence of the panel must be sacrosanct so that everybody can be confident in that independence.

Charlie McConalogue (Donegal, Fianna Fail)
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I look forward to the committee's consideration of that numbers piece. I have something of an open mind on that. The important thing is that it is practical, that it works and that it can be run in a way that works smoothly. The Cathaoirleach is right; the force majeure issue is not a matter for this legislation. It is a question of the definition of force majeure. What appeals officers and staff do in making decisions, whether at official level in the Department or when a case is appealed to this board-----

Jackie Cahill (Tipperary, Fianna Fail)
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It would impact on an appeal here.

Charlie McConalogue (Donegal, Fianna Fail)
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Yes, it would. Those officials make decisions based on the force majeure criteria.

Jackie Cahill (Tipperary, Fianna Fail)
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I fully accept it is not a matter for this legislation but it is something we need to visit.

Charlie McConalogue (Donegal, Fianna Fail)
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I take the Cathaoirleach's point. As I have said, the key thing we want to ensure is that we have practical farming experience among the membership. On the committee's considerations, it was asked whether this means that farm organisations should get to make nominations. Does allowing farm organisations to nominate members make it more independent? The Cathaoirleach's view is that it may. Senator Paul Daly asked whether the fact that the Minister will be appointing the chair will affect the panel's independence. Does the fact that the Minister is involved make the panel seem less independent? If a particular farming organisation is nominating members, could that be seen to have an even greater effect on its independence? Looking at the Agri-Food Regulator I established recently, one of the key criteria was farmer representation but that farmer representation is not directly nominated by farm bodies. However, looking at the outcome of the nominations I made as Minister, there is very strong farmer representation in the regulator. There are two former farm organisation presidents and people with different farming experience. We can get farm representation without direct nominations. If there were to be direct nominees, would the panel be seen as less independent rather than more independent? That is just a point to consider. However, the outcome definitely needs to be strong farmer experience on the panel.

Jackie Cahill (Tipperary, Fianna Fail)
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We are definitely agreed that people who farmers can have confidence in as regards their knowledge of farming, their expertise and so on are needed on the panel, with all due respect to the people dealing with the appeals at the moment. That is what will give people confidence in the process. It works well in the TB compensation scheme. When there are arguments about live valuations and the matter goes into the appeals process, I do not hear many complaints about the way that appeals process works. There are a lot of arguments about live valuations and so people do go to the appeals process but it works well. We have that model but I accept the Minister's point. The most essential thing is that there are a number of people on the panel who have expertise and knowledge of farming and who can understand people's cases from a farming point of view. That is essential. Regardless of how we frame it, all the committee and the Minister are interested in is ensuring that, when this legislation goes through, it will fulfil its obligations. A fair process is essential and the people who are availing of the service must have full confidence in its independence. That is endgame for us.

Charlie McConalogue (Donegal, Fianna Fail)
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I agree with the Cathaoirleach.

Jackie Cahill (Tipperary, Fianna Fail)
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Does anyone else want to make a comment?

Charlie McConalogue (Donegal, Fianna Fail)
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A provision to allow the fair transition of the current workload with the aim of avoiding having two different procedures for review in cases of error fact in law running simultaneously in commencement of these amendments. It will be done by regulation. Sorry, it is in the Bill There is a provision there in the Bill as to how that transition might happen. Any that are in hand will move to the new appeals body.

Victor Boyhan (Independent)
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I know the Minister has a timeline and is anxious to get this thing through. I think there is generally broad support here. The Minister can initiate this legislation in either House. We are not snowed under with work in the Seanad. This legislation is ultimately a call for the Minister and his party colleagues but the legislation could be initiated in the Seanad and I ask the Minister to consider that.

Charlie McConalogue (Donegal, Fianna Fail)
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I am open to that so I will talk to both Whips about how we can do it most efficiently,

Victor Boyhan (Independent)
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It is possibility. I appreciate that.

Jackie Cahill (Tipperary, Fianna Fail)
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I thank the Minister for appearing before the committee today. When the committee has carried out prelegislative scrutiny on the general scheme, Standing Order 176(2)(iii) grants a right to the Cathaoirleach, the Leas-Chathaoirleach or a member nominated in their place to speak on Second Stage of the Bill.