A public consultation has been opened by DAERA on proposed changes to the review of decisions process for area-based schemes.
The move is in response to an instruction from Minister Poots, who has told his civil servants that he will not be going against the recommendations of the independent panel at the second stage of an appeal.
Under the current law, the Department can choose not to accept the view of the panel, and therefore stick to its original decision made at the first stage of the appeal. There are 114 cases since 2005 where the recommendation of the panel was not followed by DAERA.
However, Minister Poots has long held the view that this is wrong, and since March 2021, he has been taking final decisions in review cases as an interim measure until new legislation is enacted.
Running to 17 August 2021, the consultation document asks for responses to three main questions.
The first is whether an appellant should be able to provide additional evidence to the independent panel. While normal convention in law would suggest that an appellant can present whatever information they wish in defence, in the current DAERA review process this can only happen in exceptional circumstances.
That was agreed between DAERA and the UFU in 2018 as part of a settlement to a judicial review case when the UFU had correctly challenged a DAERA decision to remove the independent panel from the review process.
The second and third consultation questions relate to the constitution of the independent panel itself, with respondents asked whether DAERA should either be represented on the panel, or have an advisory role. In addition, the Department has asked for views on the legal or agricultural expertise of the panel.
At present, DAERA works from a pool of suitable people, with two sitting on the panel at any one time to consider stage 2 cases.
Members are not required to have a legal or agricultural background, but are chosen based on previous experience and academic or professional qualifications. With the panel to be given decision-making powers, it may be necessary to set more robust criteria going forward.
The tenure of the current pool of panel members ends in January 2022.
Whatever the outcome of the consultation, ultimately the decisions of a panel remain subject to challenge by way of a judicial review.