UFU judicial review result – Collective strength delivers
The UFU was represented by Counsel with substantial experience of the operation of the Common Agricultural Policy (Hugh Mercer QC and James O’Brien) instructed by Andrea McCann of John McKee Solicitors, Belfast and the UFU's Technical Team.
This week the judgement of a judicial review, taken by the Ulster Farmers’ Union against the Northern Ireland Environment Agency (NIEA) and the Department of Agriculture (DARD), was delivered and found in favour of the UFU position and proves that collective strength can deliver. The review was over the definition of 'intent' in relation to CAP direct support cross compliance breaches which result in more severe penalties being applied.
“The outcome of the judicial review is a significant win for the Union and for farmers in general. We have always maintained that the onus should be on the enforcing body to prove intent and we now have a court ruling supporting our position. This judgement has wider implications and means that going forward ‘intent’ will have to be proven more robustly in future breaches of cross compliance. Also, the decision means that similar historic cases may now be re-examined,” said UFU chief executive Wesley Aston.
The case involved County Armagh farmer and UFU president, Ian Marshall, who the UFU believed was treated extremely harshly when a modest pollution incident led to the loss of thousands of pounds of income through CAP payments. The incident had been classed as intentional despite the fact that the source of the pollution could not initially be identified by the NIEA inspectors.
“The case was not about pollution or indeed the scale of the incident and we accept there is no acceptable level of pollution. The case is about whether NIEA and DARD were right to effectively ignore the views of the independent external appeal panel which considered this was a negligent rather than intentional breach and had recommended accordingly,” said Mr Aston.
The Judge ruled that the decision to deem Mr Marshall’s cross compliance breach as intentional was unlawful and found in favour with the Union on all seven points raised in the judicial review. Importantly, the Judge found that the decision-maker in Mr Marshall’s cross compliance case applied what is termed as ‘strict liability’ when making his decision. Meaning that he deemed Mr Marshall responsible but without any certain proof. In its judgement the Court said that this approach was “inappropriate and forbidden”. In addition to this, the Judge found that the decision-maker in Mr Marshall’s case let his opinion be influenced by irrelevant and erroneous statements put to him by NIEA and the Department.
“These are key elements of the judgement, and they support our position that Mr Marshall was treated harshly and unfairly. We know many farmers have found themselves in a similar position when dealing with cross compliance breaches so it is my hope that this victory offers some comfort to them as well. Undoubtedly, the judgement has set a firm precedent that will influence how NIEA and DAERA deal with cross compliance breaches going forward and should enable the review of similar historic cases,” said Mr Aston.
The Union’s decision to take the judicial review was to defend our members against unfairness and to protect the wider industry from harsh treatment for minor mistakes. “The outcome from this judicial review shows we were right to do so,” added the chief executive.
The full judgment from the judicial review is available here