R (on the application of Horvath) v Secretary of State for the Environment, Food and Rural Affairs

Farmer – Single payment scheme (SPS) – Factors leading to reduction in SPS payment – Factors including public rights of way across agricultural land in England — Whether defendant secretary of state properly including public rights of way in domestic regulations – Whether court referring to reference regulations discriminatory – Whether matter requiring reference to European Court of Justice for preliminary ruling – Appeal dismissedOne of the features of the EC Common Agricultural Policy was that farmers in the member states would receive a minimum guaranteed income, whether or not their land was productive, and that they might be entitled to payments under the single payment scheme (SPS), which was established under EC Council Regulation 1782/2003. Entitlement to full payment required compliance with rules relating to agricultural land, production and activity incorporating basic standards of good agricultural and environmental condition that were to be defined at national or regional level, as required by article 5(1) of Regulation 1782/2003 and set out in the schedule to the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance)(England) Regulations 2004.Paragraphs 26 to 29 of the schedule imposed a number of restrictions on farmers in respect of public rights of way, so that they risked losing payments if they interfered with, did not restore, or failed to maintain stiles and gates across visible footpaths and bridleways. Separate regulations applied in Wales, Scotland and Northern Ireland respectively, none of which included anything equivalent to those paragraphs. The respondent was a farmer based in England who was eligible to receive payment under the SPS. He challenged the lawfulness of those paragraphs. The Administrative Court took the view that there were cogent arguments for their validity but considered that the question was sufficiently open to justify a reference to the European Court of Justice (ECJ): see [2006] EWHC 1833 (Admin). The appellant secretary of state did not appeal against that part of the reference. However, argued that the ECJ’s assistance was not required on the question of whether the difference in treatment between English farmers and those in Wales, Scotland and Northern Ireland as a result of the four different regulations constituted unlawful discrimination under EC law, contrary to article 14 of the European Convention on Human Rights, even though there was no authority on the discrimination point. Held: The appeal was dismissed.It could not be said that article 5(1) of Regulation 1782/2003 permitted member states to implement the relevant definition at devolved regional level so that differential implementation did not need to be objectively justified to apply the principle of equality and non-discrimination. The court was provisionally inclined to think that: (i) the words “regional level” referred to geographical regions; (ii) the member states had to do the defining; (iii) an objective justification for differences was necessary with reference to the specific characteristics of the areas concerned but; (iv) Regulation 1782/2003 might not have been drafted with devolved assemblies in mind. It might be possible for the ECJ to adopt a creative construction or see the words of article 5(1) as operating within a general framework by which the 2004 Regulations might be implemented by devolved assemblies, but the English court should not do so without their assistance: Kippen (née Klensch) v Secrétaire D’Etat à L’Agriculture et a la Viticulture C-201/85 and C-202/85 [1986] ECR 3477 and Mulligan v Minister for Agriculture and Food C-313/99 [2002] ECR I-5719 considered. Furthermore, it could not be said, as the appellant contended, that where devolution arose by means of a fixed constitutional arrangement, implementation by a devolved authority was to be treated as though it were implementation by the member state for the purposes of equality and non-discrimination. It was likely that the ECJ would find a way, perhaps with reference to the principle of subsidiarity, to conclude that the appellant was correct. However, it was not for the English courts to develop that analysis or principle since they would have to consider doing it if this were purely a domestic matter: Dudgeon v United Kingdom A/45 (1982) 4 EHRR 149 and Magee v United Kingdom 28135/95 (2001) 31 EHRR 35 considered. Tim Eicke (instructed by the legal department of Defra) appeared for the appellant; Michael Fordham QC and Maurice Sheridan (instructed by Barker Gotelee, of Ipswich) appeared for the claimant.Eileen O’Grady, barrister