There is general agreement between MLAs on the Stormont Agriculture Committee and DAERA Minister Edwin Poots on changes required to the review of decisions process for area-based schemes.
Having undertaken a mini inquiry on the issue in recent weeks, committee chair Declan McAleer has written to Minister Poots setting out a number of recommendations.
The letter states that the decision of the independent panel (at the second stage of an appeal) “ought to be final”, something that Minister Poots has told his officials to deliver by way of new legislation, expected later this year.
With the Minister and the committee generally in agreement, it should help smooth the passage of any proposed new law.
During their inquiry, the committee took evidence from a number of farm lobby organisations, consultants and also DAERA officials, and that evidence is reflected in a number of points made in the correspondence sent by the committee
Those include that information provided to farmers who make appeals should be reviewed to ensure it is “more accessible, easily understood and has less legal jargon”.
In addition, MLAs argue that new evidence should be admissible at the independent panel stage (at present it is only allowable in exceptional circumstances). They also want more recognition given to the stress placed on applicants going through an appeal, and suggest that DAERA provide guidance on the potential services available to an applicant.
On historic cases where an independent panel has recommended in favour of a farmer, only for that to be rejected by DAERA, the committee believes that these cases should be “re-considered”.
One mechanism to do that is via a Supreme Agricultural Appeal Panel (SAAP), as proposed in evidence provided by local Barrister James O’Brien and DUP voluntary adviser, Brian Little.
However, the other purpose of the SAAP is to avoid a £100,000+ judicial review in the High Court as being the final outcome of a new review of decisions process.
Little and O’Brien point out that even if the independent panel is given decision-making powers, the outcome can still be challenged by judicial review.
The committee is “currently considering these proposals” and has requested that Minister Poots provide his thoughts on the SAAP, before it comes to a view.
Meanwhile, in open correspondence sent to the Stormont Agriculture Committee, the directors of Barnwell Farms, Vi and Robert Calvert, highlight the realities for any farmer taking an appeal against a DAERA decision to the High Court.
Having gone to a judicial review after being excluded from the Basic Payment Scheme (BPS) under “active farmer” rules, Barnwell Farms received a judgement in their favour in March 2020, and have since received direct payments going back to 2015.
In a similar case (involving a pollution incident) taken by the UFU on behalf of former President, Ian Marshall, he was also forced to wait over five years for payments to be made.
The Calvert letter describes their appeal as a “most exhausting and anxious process”.
While DAERA did make an ex gratia payment of £4,077 to Barnwell Farms in 2020 to cover consequential losses, including lost interest, the Department calculates this based on the Bank of England base rate, plus 1%.
The Barnwell Farm directors point out that the interest rate applied on debts by courts is normally 8%.
They ask committee members to consider recommending to DAERA Permanent Secretary Denis McMahon that he makes an ex gratia payment to them, and also Ian Marshall, based on the 8% interest rate. That is likely to involve a total around £28,000.
Of that, the Calverts suggest that £4,000 is given to the UFU to help cover some of their costs associated with the Marshall case. They want all the remaining money given to local charity Rural Support to assist farmers with any mental health issues encountered when going through an appeal process.