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Officials in DAERA are currently considering how they might deal with over 100 historic appeal cases where the Department went against the recommendations of an independent panel at stage 2 of a review of decisions process.
Last month, Minister Poots announced that all current appeals would be going to him for a final decision. At the same time, his officials are working on new legislation giving decision-making powers to the independent panel.
“There is no point in having an independent panel and the Minister then being lobbied by officials and overturning the views of the independent panel,” he told MLAs at Stormont last Tuesday.
In a letter sent to the Stormont Finance committee, DAERA has confirmed that there are 114 cases since area-based payments were introduced in 2005
It is understood the Minister has also asked officials for options to potentially address historic appeals.
In a letter sent to the Stormont Finance committee, DAERA has confirmed that there are 114 cases since area-based payments were introduced in 2005, where the recommendation of the independent panel was not followed.
In total, the sums involved are estimated to be in the region of £2.4m.
Over £5,000
One suggestion put forward by local barrister James O’Brien LB and DUP voluntary adviser Brian Little is that a new five-member Supreme Agricultural Appeal Panel (SAAP) is used to reconsider cases involving amounts over £5,000.
It would also potentially have a role in considering future cases where the Department believes that a decision made by the independent panel is not in keeping with the law.
As alluded to by Minister Poots in Stormont last Tuesday, even if the independent panel is given decision-making powers, legally all decisions must come back to a minister.
Out of the five members on the SAAP, they suggest that two have a legal background, one of whom will act as chair
If a future minister over-turned the decision of the panel, it leaves a farmer with a challenge in the High Court by way of £100,000+ judicial review as their last remaining option.
The argument made by Little and O’Brien is that a SAAP (at a cost of £5,000 per case) would substantially reduce the likelihood of a Judicial Review, and crucially, would provide a fair outcome for farmers and DAERA.
Out of the five members on the SAAP, they suggest that two have a legal background, one of whom will act as chair.
Following a proposal made by Strangford MP Jim Shannon, the top London Barrister Hugh Mercer QC has written to Minister Poots and offered his services as chair.
Mercer has a strong track record in agricultural law, and out of five recent judicial reviews against DAERA, won for Ian Marshall/UFU and Barnwell Farms, and settled the other three.
Funding
If a SAAP is to look at historical cases, it will have to be funded, and in addition, applicants will require assistance in making submissions to the panel.
The Calvert family (Barnwell Farms) has suggested that a support fund be established, and have been backed in that by former UFU president Ian Marshall.
In practice, an applicant would still pay a fee of £1,500, with the UFU approached in February 2021 by the directors of Barnwell Farms about the potential to help members cover other costs.
“In late February, we wrote to the UFU presidential team suggesting that they consider at their board in March matching the £1,500 application for the SAAP for historical cases to enable the farmer to have professional support.
“Along with Ian Marshall, we believe that, if successful, the farmer could then make a discretionary contribution of 15% of the net value of a SAAP claim to a UFU case support fund for other farmers. As of last Monday, we have not had any response from the UFU,” Robert Calvert told the Irish Farmers Journal.
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