ICMSA query new ‘double-jeopardy’ condition in BISS – Fines at WRC or HSA and penalties on BISS

The President of ICMSA, Denis Drennan, has said that one of the new conditions announced by the Minister of Agriculture, Food and the Marine in connection with this year’s BISS amounts to a clear case of ‘double jeopardy’.   Mr. Drennan said that the ‘Social Conditionality’ element introduced effectively means that farmers could end up paying twice for the same breach and is demonstrably unfair.   Mr. Drennan said that it was a founding principle of any workable system that you could not be charged and punished twice under different headings for a single breach of a rule and yet this was plainly set out in the Department’s announcement of the ‘Social Conditionality’ element that will apply to the 2025 BISS.

The Technical Notice issued by the Department of Agriculture, Food and the Marine today (11 Feb) states that ‘Social Conditionality means that an additional conditionality (our italics) may be applied to farmers that are found to be in breach of certain legislation relating to workplace safety, employment standards, or the safe operation of in the workplace machinery. This standard will not involve any additional checks by the Department but will be facilitated by cross-reporting from the Workplace Relations Commission and the Health and Safety Authority of Ireland’.

Mr. Drennan said that this actually means that in the event of a farmer being found at fault by the WRC or the HSA – and having been fined by them – that the Department will now apply a further penalty to the offending farmer’s BISS automatically under cross-reporting.  

“We continuously hear politicians telling us that they are going to simplify the system and eliminate duplication. If that’s the case, why have we ended up with this kind of duplication into an already overly complex system.  The WRC and HSA have specific important responsibilities under legislation, and they have a job to do. Why is the Department – who are already barely able to administer their own affairs and schemes -moving into these obviously separate areas?” asked Mr. Drennan.  

“ICMSA does not understand or agree with a system that has farmers fined twice for the same breach. This is blatant ‘double jeopardy’ and itself breaches one of the founding principles of Common Law: you can’t be tried twice for the same charge, and you can’t be punished twice for the same infringement. We are very disappointed to see really questionable duplication and complexity being introduced; if a farmer has been brought before the WRC or the HSA and they find against the farmer and fine the farmer, then that has to be the end of the matter.   We have absolutely no idea why that verdict is then transferred over the Department who effectively find against the farmer a second time for the same breach and deduct monies from his or her BISS.  This can’t be right, and we’d ask the Department to look again very hard at what is blatantly a case of punishing twice for the same transgression”, said Mr. Drennan.

The ICMSA President said that the new condition also raised profound questions around farmers’ personal data. He noted that a vast array of organisations have personal data of farmers and questions were now arising as to who exactly has access to this data, who is it being shared with and under what authorisation?  

“There’s an area that the Department could usefully look at and respond to, as opposed to introducing measures that will see farmers punished twice for the same single infringement”, said Mr. Drennan.

Ends         11 February 2025  

Denis Drennan, 086-8389401

President, ICMSA.

Or

Cathal MacCarthy, 087-6168758

ICMSA Press Office