UK 'gold plating challenge' goes to European Court of Justice in devolution test case

In 2005 Suffolk farmer Mark Horvath took Margaret Beckett, then Secretary of State at DEFRA, to judicial review over the way she had implemented the new Single Payment Scheme for farmers, under the EU's Common Agricultural Policy, because the conditions she imposed on English farmers were stricter than those imposed on Welsh, Scottish and Northern Ireland farmers — even though they are all citizens of the same EU member state, the UK.1

Last year the High Court ruled that in order to decide the matter two questions needed to be referred to the European Court of Justice.2 DEFRA did not want one of these questions aired in the EU's highest court, where other member states can intervene, and therefore appealed that decision. Today the Court of Appeal has rejected DEFRA's arguments.

"I am delighted that the Court of Appeal has confirmed the constitutional importance of this case" said Mr. Horvath's solicitor Richard Barker. "At heart this appeal was about how the UK's constitutional arrangements for devolution are operated in terms of EU regulations — in other words, does EU law supersede the UK acts of devolution or can those acts be used to take away rights given to UK citizens by the EU.

"The question DEFRA appealed concerns the right of all the citizens of an EU member state to be treated equally when their government is administering rights granted to them by the EU rather than that government. The right to equal treatment is well established in EU law but arises in this case because of the UK's devolution arrangements which have resulted in different conditions for payment of EU support to farmers in Wales, Scotland and Northern Ireland because these were set by their respective devolved administrations and not by DEFRA which only set those for English farmers.

"I share Lord Justice May's opinion when he stated in the judgment that 'It is surprising that there is scarcely any authority directly relevant on this difficult topic. You would have thought that the question would have arisen and been answered before now, but apparently not'.

"DEFRA argued that if this matter is referred to the ECJ it will be some time before it is settled and that will create uncertainty in the running of the UK's devolution arrangements. Though rejecting DEFRA's appeal Lady Justice Arden noted this argument and suggested that the President of the ECJ be asked for an accelerated handling of the case, saying; 'It is impossible to avoid the conclusion that this case raises important constitutional issues for the United Kingdom that will affect the executive in the Westminster government and the devolved administrations in their day to day activities. The reference may also cast doubt on what has happened in the past' and she added that it '… may give rise to the risk of state liability'.

"However," added Mr. Barker, "she made a very important point when she said that 'The situation is likely to call for a considerable amount of cooperation between the devolved administrations, as is regularly required in a federal situation' which I think might imply that such co-operation has been lacking to date and possibly that other member states have organised or manage their constitutional affairs in a more effective and 'citizen friendly' manner."

Mr. Horvath stated that he had been motivated to start this case not primarily because of the particular condition that he sought to have the court review but because it was symptomatic of a wider unfairness in the treatment of UK farmers by DEFRA.

"However despite today's court ruling, which is most welcome, what has been most rewarding since I started this case as a litigant in person without legal representation is that Mr. Barker has taken on the job of being my solicitor without charge as have my counsel Maurice Sheridan of Matrix Chambers, who is an expert in EU and environmental law, and my expert witness Peter Danks of Reading Agricultural Consultants who have both acted pro bono. Also our lead counsel for this appeal, Michael Fordham QC of Blackstone Chambers an expert in judicial review and constitutional law, has acted for a purely nominal fee.

"When you are standing alone against the government it is most wonderfully encouraging to find experts who not only think you are right but also believe in your cause enough to give very generously of their time, knowledge and skill while forgoing considerable fees which I could not possibly afford. I am very grateful and indebted to these caring people whose actions must enhance their professions' reputations."