Changes have been proposed to the Review of Decisions process for area-based schemes that could ultimately help avoid a farmer ending up in the High Court to resolve a dispute with DAERA.
As highlighted in a series of articles over the last few weeks, farmers who are not satisfied with the outcome of the two-stage DAERA Review of Decisions process are effectively left with a Judicial Review as the remaining course of action.
But with a potential legal bill running into six figures, and no guarantee of success, (or in the event of a favourable judgement, no guarantee that all costs will be recovered), most applicants walk away at this point.
“Unless the sums of money involved are substantial, a Judicial Review is cost-prohibitive. In most cases where the Department overrules the Independent Panel at Stage 2 review, claimants are effectively left with no right of redress,” local Barrister James O’Brien BL told the Irish Farmers Journal.
In four recent legal cases involving DAERA, which ended up at Judicial Review, legal costs came to well over £500,000.
Three of these cases were brought by the UFU (the first two on behalf of former president Ian Marshall), who ended up with a net spend in the region of £230,000.
The taxpayer (DAERA) had legal costs around £300,000, while in the final case, brought by the Calvert family (Barnwell Farms Ltd) it still has a shortfall of £22,000, despite obtaining a ruling in their favour.
The whole process was extremely stressful
In the Barnwell Farms case, an Independent Panel at Stage 2 review had recommended DAERA should accept the arguments put forward by the Calvert family.
However, DAERA officials decided to ignore that, and excluded Barnwell Farms from the Basic Payment Scheme under “active farmer” rules.
In the subsequent court case, the judge, Mrs Justice Keegan, said that DAERA was obliged to explain why the analysis of the Independent Panel was not followed.
“The whole process was extremely stressful, and I know it was something similar for Ian Marshall. For us, it dragged out for over five years. We all believe there has to be a better way,” explained Robert Calvert.
Since the judgement, the family, along with Brian Little (a voluntary adviser to the DUP/Strangford MP Jim Shannon) have been working to try to recover remaining costs, and to bring change to the whole review process, to benefit NI farmers.
To achieve that change, the Barnwell Farm directors asked their solicitors to instruct James O’Brien BL, the former chair of the UFU legislation committee, to work with Brian Little. Together they have drawn up a detailed 20-page document, sent to MLAs on the Stormont Agriculture Committee for consideration.
Three options put to the committee are:
“We believe that change is necessary so keeping the current process is not an option – a final decision maker must be independent of the Department. After that, we are open-minded. Ultimately it is a political decision,” Brian Little told the Irish Farmers Journal.
Our challenge to MLAs is to get this process considered
Back in November 2020, Minister Poots informed the Stormont Assembly that he would not be going against the Independent Panel at Stage 2, so it is clear he also recognises there is a need to change the law.
Little, O’Brien and Calvert have made themselves available to provide further evidence and background on their proposals to MLAs.
“Our challenge to MLAs is to get this process considered, and potentially changed, by the end of 2021. We have previously met two members of the committee (William Irwin MLA and Harry Harvey MLA), and at the time, they gave us the confidence to purse the issue and spend a little money on research, and this proposal,” said Robert Calvert.
Supreme Appeal Panel to replace Judicial Review
Changing the Review of Decisions process to one where the Independent Panel at Stage 2 had the final say would be a relatively straightforward and least costly option.
However, Brian Little and James O’Brien recognise that legislators might decide they want to build in a robust mechanism to make final decisions in disputed cases.
Their alternate idea is for a Supreme Agricultural Appeal Panel (SAAP) to consider instances where the Independent Panel at Stage 2 review has recommended in favour of the claimant, only for DAERA to either not accept that recommendation in full, or in part.
Their initial proposal is that the SAAP only consider cases where the quantum of the claim is over £5,000.
The proposed cost for the applicant is £1,500, and not refundable
The five-member panel would be made up of people from a farming and legal background, and make a final “binding decision” within 90 days of hearing a case.
The proposed cost for the applicant is £1,500, and not refundable. Both the applicant, and DAERA officials involved in making the decision at Stage 2 review would give evidence to the panel.
Unlike the current Stage 2 process where an applicant can only introduce new evidence in exceptional circumstances, the SAAP would accept new evidence from either side up to 30 days pre-hearing.
While the £1,500 cost might be offputting for some, the cases taken by the UFU and Barnwell Farms, show that a judicial review can end up costing substantially more.
Even though Barnwell Farms, and the UFU (in two cases relating to a pollution incident on the farm of former president, Ian Marshall), both won, they were not able to recover all their legal expenses.
At present, a claimant is charged £200 if they want to have their case heard by a two-member Independent Panel at Stage 2 review.
However, DAERA estimates that the actual cost of each assessment (once staff time is added in) is in the region of £600.
A five-member SAAP would inevitably cost more than a Stage 2 review, but for all parties concerned, the financial outlay would be insignificant when compared to a Judicial Review.
As highlighted in the Irish Farmers Journal dated 12 December 2020, there are up to 50 cases since 2015 where DAERA did not accept (either in full or in part) a recommendation of the Independent Panel at Stage 2 review.
In the document submitted to MLAs at Stormont, O’Brien and Little put forward options as to how these cases could be dealt with.
The first is to do nothing, as ultimately the law cannot operate retrospectively.
It will also be up to MLAs to decide what the cut-off date for historic cases actually is
Alternatively, O’Brien and Little point out that MLAs could decide to act on a voluntary basis, perhaps requesting that DAERA revisit cases and accept recommendations made by the Independent Panel.
The remaining option is to allow claimants to make their case to the newly constituted Supreme Agricultural Appeal Panel.
Either way, the onus is on claimants to come forward before the end of March 2021, either by approaching a farm lobby organisation or local agricultural consultant.
Mr Mercer QC described the Barnwell Farms case as a ‘sparkling result’
It will also be up to MLAs to decide what the cut-off date for historic cases actually is – one suggestion is that they could look at those with a final decision made by DAERA after Stormont collapsed in early 2017 (when former Minister Michelle McIlveen left her post).
DAERA instinct to “batten down the hatches”
As highlighted in previous articles, Strangford MP Jim Shannon has been working behind the scenes on behalf on his constituents, the Calvert family, to try to ensure they recover costs.
He is keen that other farmers do not end up in a similar situation, and believes that comments made to him by Hugh Mercer QC, the Senior Counsel in both the Barnwell Farms case, and all three UFU Judicial Reviews, are relevant.
“Mr Mercer QC described the Barnwell Farms case as a ‘sparkling result’ but points out that DAERA’s instinct when challenged has consistently been to batten down the hatches, rather than consider, with an open mind, whether the original decision is suspect. The reflex within DAERA has been to assume that DAERA is right, and that is not always the case,” Shannon told the Irish Farmers Journal.
Shannon is also critical of the amount of taxpayer’s money spent on Judicial Reviews by DAERA, and intends raising his concerns to the Comptroller and Auditor General in NI, Kieran Donnelly.