Challenges To 'Gold Plated' Regulations Through Agricultural Support Appeals To The Scottish Land Court (Video)

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.

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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...