Speaking in the Seanad on 8 February 2001 on the 2nd Stage of the Agriculture Appeals Bill, I said:

I regard this as a totally inadequate Bill. Despite the fact that I fully agree with the principle behind it, I intend to vote against the Second Reading unless the Minister can satisfy my concerns. I vote against in order to highlight the fact that the Bill, as conceived, is incapable of delivering on its promises.

It purports to set up an independent appeals process but the detailed provisions are such as to finally and fatally undermine that very independence.

Section 6 enshrines the promise of an independent appeals process. It provides that appeals officers shall, subject to this Act, be independent in the performance of their functions. The Minister will rely on this provision to demonstrate that it will be an independent appeals process, but this section is not enough to guarantee independence. In comparable legislation, the requirement for independent performance is backed up by a framework designed to deliver that independence.

In this legislation compared to almost all other appeals legislation the requirement for independence is backed by a framework that will undermine rather than help it.

Independence is the whole point of creating the function. The director of agriculture appeals needs to be distinct, separate and independent from the system that is being appealed against.

While it makes sense for the office to be under the aegis of the Department of Agriculture, it makes nonsense of the enterprise to put the office and staff under its total control - as proposed by the Bill in its present form.

We have precedents for setting up an office that, despite operating under the aegis of a particular Department, is required to be independent in its performance.

The obvious case is the Ombudsman. Others are the Data Commissioner and the Director of Consumer Affairs.

The same basic strategy was followed in the legislation setting up these offices yet this Bill ignores that strategy. The strategy is to declare an office created. Having created the office the legislation then determines how the holder of the office is to be appointed and specifies the process by which the holder can be removed from office.

The Director of Consumer Affairs, who is appointed through the Civil Service Commission, can be removed by the Minister. However, the Minister has to state reasons for the removal to the Houses of the Oireachtas. The Ombudsman can be removed only on foot of a motion passed by both Houses.

The mechanisms for removing a post holder may vary but the principle is the same. The person cannot be removed at the whim of a Minister. It is a variation of the arrangement under which judges cannot be sacked and exists to underpin the independence that is expected in the performance of the post.

A further arm to the legislative strategy used in setting up these posts is that in having created the office one attaches to it particular powers and functions which are executed by the office holder.

The effect of this is that the only link between the sponsoring Department and the office is the office holder. Everything should flow through that link. There should be no interaction between the Department and the office except through the office holder.

The office holder has control over the appointment of staff and they are responsible to the office holder in the performance of their duties. They are employed by the office, not the Department.

These features of the legislative strategy are there for a definite purpose. They provide a framework for independence and performance while maintaining and retaining the minimum level of democratic control.

The success through the years of the offices of the State created in this way provides a compelling argument that this is the road we should follow. We have a cluster of precedents backed up by a success record, yet in drafting this Bill the Minister has chosen to ignore these precedents. He is badly advised in doing so. The result, if he proceeds, will be the creation of an appeals process without credibility. It does not deserve credibility.

Section 2 states that 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.

Section 3 provides that one of the appeals officers shall be designated by the Minister as the chief appeals officer who shall be known as the Director of Agriculture Appeals.

In these two sections the Bill seeks to create a structure that makes nonsense of the requirement under section 6 for the appeals officers to be independent in the performance of their functions.

Section 2 gives the Minister unfettered power to appoint and remove appeals officers at a whim. There is no safeguard against being removed because the Department does not like the way an appeals officer performs. That is frightening. To be credible a safeguard must be provided just as it is in the legislation providing the precedents we should follow.

A farmer appealing against a decision of the Department of Agriculture will find it difficult to believe in the independence of the appeals officer hearing his case if he knows the officer holds his job "at the pleasure of the Minister". Will he not be inclined to believe that the appeals officer is unlikely to rock the boat?

Any farmer who watched the series "Yes, Minister" will remember how the permanent secretary used to get his way with the Minister's private secretary. He would gently remind the private secretary that his promotional prospects and his future career depended on his playing ball with the Department.

To impose an independence requirement on people who are locked into the Department's promotional and hierarchical structure is to expect a level of saintliness that no legislation can guarantee. Rather than expect the impossible we should follow the precedents that already exist.

There is worse to come.

Section 3 gives the first mention of the Director of Agriculture Appeals. Rather than setting up an independent office, the holder of which would be the boss, this Bill makes it clear that the director is nothing more than a title.

There is no attempt to vest the appeals process in the director.

There is no specification of his or her functions.

It does not even specify that the other appeals officers are responsible to the director and it gives him or her no function in appointing them.

In regard to every one of the safeguards we find in the legislation providing precedents this Bill falls short. I described it at the outset as inadequate. I now go further and say that the appeals process set out in this Bill is nothing short of a sham.

This sham will not convince the farming community it is intended to serve. I appeal to the Minister to take this Bill back to the drawing board. He should persuade his people to look at the precedents and follow them. Then he should return to the House with either a new Bill or amendments for Committee Stage that will create the basis for a credible independent appeals structure.