A Supreme Agricultural Appeal Panel (SAAP) would be a mechanism to deal with historic appeal cases still in dispute, and it could become the final decision maker in a new Review of Decisions process, MLAs on the Stormont Agriculture committee were told last Thursday.
Providing background, DUP voluntary adviser Brian Little, and local Barrister James O’Brien BL said that they wanted to avoid a situation where farmers who appeal a decision by DAERA face a £100,000+ bill for a Judicial Review.
At present, a farmer who appeals a DAERA decision has their case initially considered by Department officials at Stage 1.
If the applicant is still not satisfied, they can go to the Independent Panel at Stage 2. But this panel only makes recommendations, and DAERA is not obliged to take those on board. Where this happens, the only remaining course of action is effectively a Judicial Review in the High Court.
Last month, DAERA senior official Dr Jason Foy confirmed to MLAs that the Department is working on new legislation (on the instruction of Minister Poots) that will give decision-making powers to the Independent Panel at Stage 2.
If the Independent Panel is given the final say, why need an SAAP at all, queried some MLAs.
In response, Little pointed to remarks made by Foy when he stated that decisions made by the panel must be in keeping with regulations. So potentially, could DAERA still go against the Independent Panel if it believes the decision is not within the law?
“He [Dr Foy] has not said that will be the final decision, and there is no legal challenge. If they change the legislation to letting that occur [the panel decision is final in all circumstances], then fine, no need for a Supreme Panel”, argued Little.
Ultimately, he and O’Brien fear that without the SAAP, if DAERA believe the Stage 2 panel decision is not in keeping with the law, it could seek a Judicial Review. “The next stage cannot be a £100,000 problem,” said Little.
Responding to a question from south Antrim MLA John Blair, he suggested that the proposed SAAP would have five members, with three drawn from a pool of around 20. The pool would also be used to appoint members to the Independent Panel.
That leaves two places on the SAAP for people from a legal background, which Little and O’Brien believe would help ensure a watertight legal judgement. Names they suggest include Hugh Mercer QC and Tony McGleenan QC, both of whom have experience of Judicial Reviews.
Little estimates very few cases would ever need to go to the SAAP (3 – 5 per year). Each case would cost £5,000, of which £1,500 would be payable by a farmer (but the SAAP could decide to reimburse some, or all, of that fee).
The other potential role for the SAAP is to hear historic cases where the Department has decided not to accept in full, recommendations made by the Independent Panel at Stage 2. Since 2015, there are up to 50 relevant cases, but there are also those going right back to the early 2000s.
Brian Little argues that all these people should be given the opportunity to have their circumstances looked at again, but on the understanding that the value of the disputed monies involved is over £5,000, and that the applicant is willing to pay the £1,500 fee.
Close to 40 people have already sought advice, but he reckons of those, only six are prepared to go to an SAAP.
“The vast majority of people are too scared of the Department or too scared of their wives to go and raise this again, and have moved on with their life. I doubt if there will be more than 10 or 12 cases. For those 10 individuals this is something that most days they get up, they think about. From a mental health point of view we should try to find a way to allow those historic cases to be processed,” he told MLAs.