Katherine Zappone (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Perry. I also welcome the noting of the importance of independence, actual and perceived, in the amendment. However, the amendment states that there is no sustained or concerted criticism of the independence of the office. My colleague, Senator Norris, has referred to evidence to the contrary, highlighting a statement of the former chief appeals officer in 2007, who called for statutory independence for the office. The Commission on Social Welfare recommended an independent chairperson in 1986 and the Northside Community Law Centre has also called for the independence of the office.

We must examine what independence means. Stating that the social welfare appeals office is independent without reference to objective standards of independence is simply not sufficient. There is a host of human rights principles against which we should evaluate independence. These are embedded in our Constitution and the European Convention on Human Rights, to which my colleague, Senator van Turnhout, referred. I referred to four of them as well. They are embedded in the European Convention on Human Rights, although I note that the State is in breach of the convention and has been for more than five years on account of the Lydia Foy case.

We have human rights principles, objective standards developed over time through courts of law and by agreement of millions of people at European level. These are standards of independence and fair procedure, some of which I have identified. Our recommendations are based on these standards of independence. Our call for an audit requests that the Government recognises these standards. We call on the Labour Party and Fine Gael to demonstrate their recognition of these standards by conducting an audit and publishing it for the public. It is simply not good enough for the people to be led by a Government which declares that it has respect for the rule of law, including the human rights law, but which lists the accomplishments of reform on the basis of what the Department tells us and on the basis of what we are told by staff appointed by the Government.

We regret that the Government has used the statistic of 42% of appeals allowed as evidence of the independent nature of the appeals office. We believe this demonstrates the flawed process at the beginning of the system. The amendment also refers to the ability to appeal to the courts on a matter of law or by means of judicial review. Other Senators have spoken about this and the Minister referred to it as well. Realistically many people who access social welfare and who make appeals are among the most vulnerable and marginalised. How would they have the resources to make these continued applications? This is why we are calling for legal assistance in complex cases. I believe the Minister knows the difference between the theoretical opportunity for fairness and justice and genuine access to fairness and justice. Many appellants require legal representation to access fairness and justice.

The amendment refers to the provision of oral hearings where it is deemed appropriate. Oral hearings are deemed appropriate by social welfare appeals officers. These hearings may take more time but they have a higher success rate. Why is this? It is because oral hearings allow for a teasing out of the issues and the questioning of evidence and decisions. One principle of natural law and fair procedure is that a person should have the opportunity to make her case in the easiest form possible. We have called for an amendment to the social welfare appeals form to include an option to request an oral hearing. The Minister is unwilling to grant this. Rather, she has stated that it is under consideration by the chief appeals officer. Is it not the Minister who creates policy? This right is integral to fair procedure.

Does our motion call for an audit? No. Does it call for putting more resources into the system at the first instance of decision, where, many of us have acknowledged, many of the problems stem from? No. Does our motion call for automatically providing appellants with their social welfare file? No.

The Government is saying "No" to our calls to provide appellants with their social welfare files automatically.

The Minister talked a lot about the difficulties of anonymising the Department of Social Protection database, but we are not talking about anonymising 28,000 cases; rather, we are talking about significant points of law. The Government is saying "No" to amending the social welfare appeals system to allow appellants to request an oral hearing and "No" to making civil legal aid available for appellants in complex cases. The message to the people from the Government amendment is that further reforms as identified by us are not necessary, that the current reforms are largely sufficient and that the Government has not taken on board any of our calls for changes to a system that is still not fair enough. Therefore, I will push the issue to a vote.