Challenges to 'gold plated' regulations through agricultural support appeals to the Scottish Land Court
The Scottish Government has launched its consultation on its proposals for a rural funding transition period post Brexit. In his foreword to the consultation, Fergus Ewing stated: “In the short term we are proposing that support schemes for active farming, food production, environmental improvements, forestry and rural development fundamentally stay largely the same. However, where schemes and processes can usefully be simplified and streamlined, we should do so.”
Given my background conducting agricultural support appeals in the Scottish Land Court, this simplification and streamlining of support schemes and processes provides some interesting food for thought.
The consultation presumes that Scotland should be able to adopt its own chosen farm support policy, either from late March 2019 in the event of a hard Brexit or, if an EU-UK transition period is agreed, from 1 January 2021 (or 2020 for CAP direct payments).
It seems that the Scottish Government believes “there is scope to investigate whether we could significantly simplify delivery arrangements for pillar 1 payments, whilst protecting or enhancing the economic, social or environmental benefits we are seeking to achieve.”
My question and my concern is how confident can the industry be that the government will be able to achieve this aim?
There are two stages for appeals against adverse support decisions. The first stage is an internal appeal which is dealt with by the Scottish Government Rural Payments Division Where that initial appeal is unsuccessful, the aggrieved farmer can make an appeal to the Scottish Land Court, wherein the court will consider the whole circumstances of the decision.
A careful analysis of successful appeal outcomes in the Land Court demonstrates that almost always, Scottish Government has “gold plated” regulations, often beyond what was necessary to implement the rules promulgated at European level.
In a case concerning NVZ Regulations, the department penalised the farmer for applying higher than standard application rates of nitrogen fertiliser.
The reason for doing so was that the farm records did not show that previous yields were sufficient to justify these higher rates. Despite the farmer pointing to higher yields on farms under his management of similar character nearby, Scottish Government discounted this evidence. However, the Land Court upheld the appeal on the grounds that the relevant European directive did not exclude evidence of that nature.
Another recent example is an appeal from a penalty imposed under the Scottish Upland Sheep Support Scheme. The penalty was imposed for an alleged failure to notify relevant stock movements. Scottish Government at the internal appeal stage accepted that the movement form had been posted but took the view that the farmer should have sent it by recorded delivery and then checked that it had been received.
The court upheld the appeal, finding that there was nothing in the rules either at European level or at domestic Scottish level which imposed any such obligation on the farmer.
This was a case of Scottish Government not just gold plating European rules but reading requirements into its own regulations which did not exist.
I have no doubt that Fergus Ewing is sincere and there is a real opportunity for meaningful change. However, that will require a fundamental change of mindset within the Department.