APPENDIX II
Systems in other jurisdictions
ENGLAND
The current English system was introduced in 2002, when account was taken of what was then being done in the other UK distinctions.
In formal terms it is a two stage process, but before a case enters that formal process Rural Payments Agency (" RPA") staff carry out an investigation of the case to see whether or not the RPA ought to stand by its original decision. If they decide not to the matter is resolved in the claimant's favour without further procedure.
If, however, the RPA decides to stand by its original the claimant has 60 days within which to lodge a Stage 1 appeal with the RPA's Customer Relations Unit (" CRU") at Reading. (Although 60 days is the formal requirement, in fact the RPA does not enforce time limits since, apparently, these are not contained in the relevant Statutory Instrument and no one in England has ever had an appeal refused as out of time).
Within the Customer Relations Unit ( CRU) there is a dedicated appeals unit staffed by six Executive Officers and four Higher Executive Officers. Although part of the RPA, CRU staff are completely separate from payments staff and will have had no previous involvement with a case. The case is first considered by a "Whole Case worker", then by a "Consumer Champion" and information and advice is taken from experts on the various schemes as required. The CRU aims to decide cases within 90 days.
If the claimant is not happy with the CRU's decision he or she can take their case to the second stage of the procedure (again, nominally, within 60 days) for a fee of £100, refundable on success. Prior to the papers being passed to the second stage CRU staff will consider any new material produced by the claimant in support of Stage 2 of his/her appeal. That provides a window of opportunity for further review before Stage 2 proper gets under way.
Stage 2 is a review by an independent panel comprised of people such as farmers, land agents and rural surveyors. Unlike the position in Scotland, RPA personnel have never sat on these panels and, as noted in the body of our report, no contact of a representational kind takes place between RPA staff and the panel in the absence of the appellant. CRU staff prepare a set of case papers for the panel members and the appellant gets an identical set.
Where the appellant requests an oral hearing arrangements are made for the panel to sit in his or her part of the country. Representation, by friend or professional person, is allowed but informality is encouraged at such hearings. The panel makes a non-binding recommendation to the relevant Minister in the Department of Environment, Food and Rural Affairs (" DEFRA"). After the recommendation has been made RPA officials cannot get directly involved but can put a submission to the Minister advising him of issues associated with possible decisions available to him. But in terms of advice at that stage the Minister relies not on the RPA but on his own lawyers within DEFRA. We were told that the Minister in post when we met with CRU representatives had from time to time declined to follow such recommendations, including some which favoured the RPA. As elsewhere in the UK and, indeed, in the Republic of Ireland, the Minister's decision can be the subject of judicial review.
An interesting view we encountered at our meeting with CRU personnel was that increased formality was likely to lead to less flexibility, not just procedurally, but in decision-making and that if Stage 2 appeals were to take on the form of tribunal hearings that could result in more cautious decision-making. There was also a feeling that increased formality and expense would discourage people from appealing in the first place. Interestingly, also, there was a feeling that RPA involvement at the Appeals Panel stage had been cut back too far and there is now talk of them being allowed to argue the RPA case at Appeals Panel hearings, as distinct from simply being available to answer questions.
NORTHERN IRELAND
The present Northern Irish system was set up in 2004. It has two stages. The first stage is a review by Department of Agricultural and Rural Development (" DARD") who have had no previous involvement with the claim. They are based at Derry/Londonderry. The second is an External Panel review administered by DARD officials in Belfast. There is a 42 day time limit for the lodging of Stage One reviews and a 30 day limit for Stage Two, both limits being strictly enforced. Stage Two involves a refundable fee of £50 for a written review and £100 if the claimant opts for an oral hearing..
Uniquely in the UK, Northern Irish external panels comprise only two members and one is always legally qualified, the other being a farmer or someone with a background in rural affairs. Again uniquely in the UK, persons who have served either as farming union or DARD personnel within the past five years are excluded from panel membership. Representation, by friend or professional person, is permitted at oral hearings but there is a strong emphasis on keeping procedure informal and hearings short (normally as short as 30 minutes). The Department is not represented at the panel hearings, in the sense of having their case argued there, but DARD civil servants advise the Minister in relation to whether they consider the ensuing panel recommendation to be lawful. As elsewhere recommendations by the panels are not binding on the Minister and the Minister's ultimate decision is challengeable only by judicial review. Since the panels comprise only two members there can be, and have been, cases in which panels are unable to agree a recommendation, leaving the matter for the decision of the Minister.
The emphasis on informality referred to above was reflected in our discussion with Northern Irish civil servants involved in administration of the scheme. They disliked the term "appeal", preferring "review" 22. "Appeal" was too formal and suggested a process which was confrontational and expensive. What was needed was informality together with transparency and reasonableness of approach. Likewise they did not like talk of appeals/reviews being "successful" or "unsuccessful": they rightly pointed out that what was involved was always a question of entitlement and if a person was entitled to something he or she should get it.
As elsewhere in the UK there was recognition on both sides of the fence (government and non-government) that they were operating in a very strict - and strictly policed 23 - European framework, with all the tensions and frustrations that entails. Challenging that had been difficult and one of our interviewees who had complained to the European Commission that penalties were too severe had got "a lecture on proportionality" for his trouble.
WALES
As originally set up, in 2001, the Welsh appeals system involved three stages:-
(1) Review of the case by the Divisional Office (in Scotland "Area Office") dealing with the case;
(2) Review at Head Office level by a team comprising appeals officers and experts on the individual aid schemes; and
(3) Appeal to an external independent panel which made a non-binding recommendation to the relevant Minister.
This structure proved too cumbersome for handling the volume of entitlement appeals resulting from the introduction of the SPS so it was reduced to a two stage process comprising (1) a review at Divisional Office level and (2) appeal to the external panel, but with the second stage now being something of an amalgam of the previous second and third stages. Unlike the position in England, the 60 day time limits for lodging appeals are applied strictly.
Procedure at Stage 2 level is really divided into two stages. First, officers of the Appeals Unit, which has a staff of 6 (reduced from 14 under the old arrangements), will scrutinise the papers with a view to seeing whether the appeal can be upheld. If it can there is no further procedure and payment is made to the farmer. Because of the thoroughness with which things are done at Divisional Office level, a decision is likely to be overturned at this level only if new information is produced by the appellant. If the decision is not overturned as a result of this review, the appeal goes to an External Independent Panel. Although no member of the executive sits on these panels they were criticised by Welsh farmers as not being sufficiently independent, both because they were serviced by civil servants who thus had constant access to them and because they were not free to come to the decisions they thought right in the circumstances of a case.
Again the Independent Panel makes only a recommendation: the Minister makes the decision. Beyond that there is only Judicial Review.
As in Scotland, there was a conflict of priorities as between processing payments and processing appeals against the refusal of payments. Despite the fact that payments always won in that particular battle ("If we stopped paying in order to deal with appeals we would be beaten with a bigger stick"), a case going through the procedure from start to finish rarely takes more than six or seven months to complete. What most impressed us about the way things are done in Wales, however, was the extent to which they "load the front end", as one of their officials put it, in order to minimise the risk of errors arising in the first place. Hence we have borrowed from Wales our recommendations for a Farm Liaison Team and more imaginative form design.
Other EU Member States
DENMARK
In Denmark, except in cases involving environmental schemes, decisions by the Payments Directorate are reviewed, in the first instance, by the Directorate of Support who check the decision to see whether it is, in their view, legally correct. If they are not satisfied that it is they can remit the case to the Payments Directorate to be processed again. A very high proportion - estimated by the farmers' representatives we spoke to at 99 per cent - of the decisions challenged are upheld by the Support Directorate. Beyond that, resort is to the ordinary civil courts but taking matters that far is a very rare occurrence. Decisions by the courts are, of course, binding on the government. Reviews by the Support Directorate should only take three months but that timescale is, apparently, frequently exceeded.
Environmental schemes come under a different Ministry of the Danish government and appeals under those schemes do have a separate appeal system, with appeals going before a panel made up of environmental experts and representatives of relevant interest groups and government, chaired by a judge. Such cases were very complex and can "take years" to be decided we were told.
As to civil servants giving advice or guidance to farmers, the formal position is that they do not give advice, only guidance, but, according to those we spoke to, practice varies from one district to another. (We were told that a government minister once took the view that since government officials were the people who knew the rules best, they were the very ones who should give advice but that point of view has not won out.) Refusal of advice was, we were told, the cause of much frustration among farmers.
The feeling that other countries interpret regulations more flexibly or liberally is also familiar among Danish farmers.
FINLAND
Finland has an Appeal Board which deals with all kinds of agricultural issues. It is part of the Ministry of Agriculture. It comprises representatives of the government and farming interests. Its decisions are binding on the Finnish government. There is, however, a suggestion that the Appeal Board should be scrapped and the matters it deals with left to the ordinary courts to resolve. This is resisted by farmers' representatives who point to the expertise in agricultural matters which the Board has compared to the ordinary courts. Those we spoke to identified readily with the notion that the EU regulations governing agricultural aid are too strict and it appears that Finnish farmers share with their British counterparts the notion that other member states do things better. It was also the perception of those we met that there would be more appeals arising out of cross-compliance requirements than there had been under earlier schemes.
FRANCE
Despite repeated attempts by French farming unions to get action on the matter, France has no separate appeals system in relation to agricultural aid payments. The only recourse is to the ordinary administrative courts.
As in the UK, the French government gives only information and guidance to farmers, not advice. In that situation some of the French farming unions have themselves undertaken the training of farmers in form-filling. The unions also attempt to discuss matters such as form design and the guidance notes which accompany claim forms with the relevant department annually.
With 8bn Euros being paid annually to its 450,000 Single Payment claimants, France is by some way the largest consumer of EU agricultural aid, so the absence of an appeal structure is interesting. From our discussions with French farming interests it would appear that it is not to be explained by complete satisfaction on the part of French farmers with how their claims are handled. The unions have long pressed for the creation of an administrative body made up of representatives of the farming industry and government which would have power to review individual cases but the French government has consistently refused. Many farmers have legal expenses insurance but the record of successful challenges to payment decisions in the French courts is not good. That - together with a perceived risk of one's claim attracting greater scrutiny by officials next year - has over the years discouraged farmers from bringing such challenges.
GERMANY
Like France, Germany has no separate appeals system. Complaints by claimants will cause their cases to be looked at but if the decision of the paying authority remains the same the only resort is to the courts. The courts do, however, offer a special procedure for cases involving challenges to public administration
In that situation, again as in France, farming unions help farmers with form-filling and provide advice. As a result of co-operation between local, Lander, administrations and the unions, a system has been devised which has resulted in almost all forms now being electronically submitted which, because of automatic checking, reduces the risk of error. That is part of a general movement towards increased computerisation in record-keeping.
THE NETHERLANDS
In the Netherlands, beyond a review of one's case by the Ministry of Agriculture, there is the possibility of appeal to the College van Beroep voor het Bedrijfsleven (" CBB"), a special tribunal for dealing with company and business matters generally, not just agricultural aid appeals, and from there to the ordinary civil courts. Despite their estimate that 90 per cent or more of the CBB's decisions in this area have been in favour of the government, those we spoke to were not aware of great dissatisfaction with the system among Dutch farmers. Possibly for that reason among others, appeal beyond the CBB is rare. That success rate may also explain a change in attitude on the part of the Dutch government which farming representatives we spoke to claimed to have noticed in recent years: less willingness to intervene to resolve complaints and correspondingly greater willingness to let cases go to appeal.
REPUBLIC OF IRELAND
Arrangements in the Republic of Ireland have been extensively referred to in the body of our report and there is no need to repeat them here.