Farming Through Brexit: How will leaving the EU affect farmers in and around the South Downs National Park?

photo of Helena Howe

Helena Howe

In this piece Dr Helena Howe (Lecturer in Law at the University of Sussex) gives snapshot findings from a pilot study of how the UK leaving the EU will affect Sussex farmers. In addition to outlining findings, Helena sets out potential policy implications of the research, as well as next steps for the project.

Initial snapshot of findings from pilot study

WHAT IS THE STUDY AND WHO IS INVOLVED?

In a way this project started in 2016, just after the vote to leave had been announced. I stood at the base of the Downs talking to a farmer who has worked hard to enhance the wildlife on the farm and is justly proud of his farmland bird populations. But his vision of the future was not a comfortable one. If food prices fell and financial support for farming reduced significantly, he feared being left with no choice but to squeeze every ounce of productivity out of the farm; thereby squeezing out the wildlife. A well-designed and funded system of support for farmers and land managers could do much to address the flaws in the existing approaches, buffer uncertain markets and foster sustainable food production in the UK. But the risks of getting it wrong were evident.

Withdrawal from the EU and the Common Agricultural Policy is likely to have significant impacts on farmers in the UK. The Department of Environment, Food and Rural Affairs (DEFRA) is currently developing the new regulatory framework for land management, including the proposed Environmental Land Management Scheme (ELMS) to deliver ‘public payment for public goods’, although there is ongoing uncertainty due to the election and Brexit process.

This is the first stage of a study following a dozen farmers in and around the South Downs National Park until 2024. The aim is to contribute an in-depth, regional exploration of farmers’ lived experience of farming as we leave the EU and their responses to the emerging post-Brexit law and policy.

The research began with this pilot study of six farmers in the Eastern South Downs. The farms involved differ in terms of output, approach and tenure. Four of the farms were described as conventional or commercial, one is organic dairy and another has sustainability firmly integrated with food production. There is a mix of owner-occupiers and tenants.

The farmers were interviewed during summer 2019 and asked for their views on:

  1. the impact of Brexit on their farm business, including the changes to existing payment schemes;
  2. whether the potential changes to their markets and the introduction of the Environmental Land Management Scheme (ELMS) were likely to alter the way they farm;
  3. features of the proposed ELMS and opportunities for participation in the process of development;
  4. any other issue they felt important.

 

WHAT ARE THE INITIAL FINDINGS?

1. Potential impact on the farm business

All the farmers felt uncertainty about the future. Several were extremely concerned about the financial viability of their farms post-Brexit given the lack of information on market conditions – particularly tariffs, food standards and distribution channels – as well as payment schemes. Most felt that without either higher food prices or substantial public good payments their farm business would be in a precarious financial position. One noted that their farms and other risked ‘going bankrupt wholesale’ (Farmer A). Most already relied on diversification to support the farm financially, although several questioned why the return on food production was so low as to make diversification necessary.

For most, removal of income support through Direct Payments and lack of detail around the new ELMS was a major concern. The majority felt that the loss of Direct Payments could be mitigated if payments for ‘public goods’ under the new ELMS were set at a suitably high level. However, most of the group acknowledged the problems with an area-based payment to landowners, particularly the impacts on land prices and rent. Several noted that the position was more challenging for tenant farmers than owner-occupied farms. Some also expressed concern for the new generation entering the sector.

Farming in this region was seen as a mixed blessing. Those who farmed in the South Downs National Park felt that this was a potential benefit under a system of payments for the provision of public goods. Several farmers were critical of the South Downs National Park Authority management of issues, particularly in relation to recreational access and planning.

2. Changes to farming focus and practice

For all but two of the farmers producing food was the priority. Two of the participants felt that food production was vital but more integrated with wider environmental and social goals. All the farmers were aware of the potential impact of their practices on the environment, both positive and negative. Several felt the degree of damage done by farming to the environment was mispresented.

The majority of participants appeared pragmatic about what they would produce and how they would manage their land and livestock in the future. As one farmer stated: ‘…if I need to change something because that’s where the money is, then that’s what I have to do’ (Farmer B). Decisions on what to produce and how they produced it would be largely determined by what was required by the market or any payment schemes. One spoke of willingness to produce wildlife if that was what became financially sensible. However, another was prepared to become more intensive if this was the only way to maintain the viability of the farm, against his personal preference. Another two felt they could accept a system in which conservation was integrated into food production but would not prioritise public goods over food.

The other two were less pragmatic. They felt that their commitment to broader principles of sustainability meant that they would not be willing to intensify if it meant seriously compromising these principles.

A recurring theme was that the costs of producing food were not adequately recognised or reflected in the prices consumers expect to pay. Several farmers noted that income support through Direct Payments to farmers worked to subsidize cheaper food. The loss of these payments and low returns on food mean farmers are being asked to absorb this cost unfairly; in effect being asked to produce public goods – in the form of cheap food – without this being acknowledged or paid for. They felt this was a major issue for them and for the future of the sector.

3. Initial responses to ELMS

There was enormous frustration at how inflexible and prescriptive the existing agri-environment schemes (AES) have been in setting and enforcing objectives. Many felt that there was insufficient account taken of farmers’ knowledge of their farm and that enforcement was unduly harsh.

All felt that to be successful the new scheme must address these issues. Recommendations included:

  • a move to a more outcome- based system: ‘so what they need to do is to put it in our hands and say … “you deliver this and we want to see results”’ (Farmer E);
  • greater flexibility to enable farmers to try different approaches without being penalised;
  • regional implementation and support for ‘sensible’, knowledgeable, local advisors to help co-design a plan for the farm and to monitor achievement.

For one famer the scheme was simply flawed because it focuses on environmental goods and ignores food production.

Four of the six farmers are part of the same farming cluster. Some found the experience useful for peer learning and social interaction but others seemed unsure as to their real value or purpose. The importance of having a good facilitator was mentioned by several participants. There was ambivalence about an enhanced role for clusters under the new ELMS system amongst this group. Some recognised that this could help to provide public goods at the landscape level but were concerned about how this could work in practice. Several farmers stated that everyone wants to do their own thing on their own farm and not be tied into a scheme with other farms.

All but one farmer felt that they had not been enabled to participate in the development of the new scheme sufficiently. Some felt that that their views had not been sought, save via online consultation or by bodies such as the National Farmers Union (NFU) and the Country Land and Business Association (CLA). But many also felt they had not been – or would not be – listened to. One farmer mentioned that the South Downs National Park Authority has played a role in feeding their views back to DEFRA. Several famers felt that clusters should be used to feed farmers’ views into policymaking.

4. Additional issues

Several participants highlighted the challenges facing younger entrants into farming, such as access to available land – on which to both farm and live – as well as comparatively low levels of pay. Some linked this to the wider issue of how to support thriving rural communities through planning and communications policies. Others mentioned the move towards plant-based diets. Some noted the vital role of cattle and sheep farming in maintaining the Downs landscape but others were trying out products for the growing vegan market.

One farmer emphasised the role of farming in mitigating environmental and social crises through innovative sustainable practices and opportunities to provide experiences that educate and enhance well-being. He wanted farmers, schools and policymakers to embrace and support this vision.

 

WHAT ARE THE POTENTIAL POLICY ASPECTS FOR THE STUDY TO EXPLORE?

  • The funding and design of ELMS is potentially key to maintaining both viability of farms in the region and integration of environment and food production. The research will explore ELMS’ capacity to support farms in the South Downs to produce food alongside public goods.
  • If farmers are pragmatic and adaptable there are opportunities and risks for sustainability. Financial and other support could promote a resilient, sustainable farming sector but insufficient funding, excessive bureaucracy or delays could do the reverse. The challenge is to ensure that farmers adapt to changes in ways that promote ecological sustainability rather than being resilient by intensifying their food production. The study will help understand what farmers feel is needed to enable sustainable adaptations in farming practice.
  • Changes in the delivery of advice, monitoring and enforcement are likely to be key to helping farmers adapt to more sustainable practices and make the most of public funding under ELMS. A shift in the balance towards useful advice and away from inspections could significantly improve farmers’ experience of regulation and motivation to engage. The study will explore the role of advice, what makes valuable advisors and how they can enable farmers to make innovative and beneficial use of a more flexible and reward-based scheme.

    The experience of these farmers validates DEFRA’s aim to enhance flexibility and reward outcomes through ELMS. The research will help evaluate how well farmers feel the developing schemes meet these goals.

  • A role for clusters in the administration of ELMS appears challenging. The study will capture members’ experience of participation and suggestions for working at landscape scale.
  • Policymakers could increase efforts around effective participation in the design of ELMS. This study aims to monitor farmers’ perceptions of this and provide another path for feedback.

 

WHAT NEXT?

Discussion is underway with key policymakers and stakeholders to ensure the study is as useful as possible. Additional recruitment of participants in the project is also taking place.

Please contact: h.r.howe@sussex.ac.uk for further information or to get involved.

Hurrah for the judges and the rule of law

Sue Millns
Sue Millns

The judgment of the High Court of 3 November 2016 about the process that should be followed to enable the UK to leave the EU raises profound questions of constitutional significance for the United Kingdom.

At the centre of the case is the legal question of whether or not the government is entitled to trigger Article 50 of the Treaty on European Union (the exit provision under EU law) solely by the exercise of the Crown’s prerogative powers (meaning that this is purely an executive decision which can be made by the Prime Minister) or whether reference must be had to Parliament (the democratically elected, legislative body).

High Court judges wearing traditional red and white robes - photo courtesy of FruitMonkey (CC BY-SA 3.0)High Court judges wearing their traditional red and white robes. Photo © FruitMonkey (CC BY-SA 3.0)

The government, in suggesting that it could use the prerogative to put in motion the procedure contained in Article 50, relied on the suggestion that the conduct of international relations, including the making and unmaking of treaties (as is the case here), is a matter that falls within the Crown’s prerogative powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected.

The Unwritten Constitution

Putting politics to one side for a moment, which is exactly what independent judicial authority is required to do, the legal question is tricky to resolve because the United Kingdom, unlike most states, does not have a written Constitution.

We have an unwritten system of constitutional arrangements, conventions, doctrines, some parliamentary legislation (like the European Communities Act of 1972) and case law (decisions of the judges). We do not therefore have an easily accessible text which sets out the rules of the constitutional game. Instead we are left to follow principles derived from an array of sources which have amassed over time with varying degrees of force and authority.

Resolving the thorny legal question at the heart of this dispute is exactly what the three judges of the High Court had to do in their landmark decision of 3 November.

At the heart of the legal problem lies the question of the extent of the Crown’s powers under the royal prerogative. The prerogative, which is a key aspect of the UK’s unwritten constitutional arrangements, refers to those residuary (arbitrary) powers which continue to remain with the Crown (or executive) despite the sovereignty of Parliament (which was confirmed in statute by the 1689 Bill of Rights following the Glorious Revolution).

The Crown (i.e government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative.

The government argued that it could legitimately use the prerogative to give notice under Article 50 of its intention to begin the process of leaving the EU. This process would have the effect of taking away, or putting an end to, rights derived from EU law and incorporated into domestic UK law by the 1972 European Communities Act once the process was completed.

A photo of the High Court building in LondonThe Royal Courts of Justice in London, where the High Court judges made their ruling. Photo © sjiong (CC BY-SA 2.0)

What the judges of the High Court found, however, was that the government’s argument was not supported by the constitutional law of the UK.  The most fundamental rule of the UK’s constitution is the principle of parliamentary sovereignty or legislative supremacy. This means that Parliament is the supreme law-making body in the country and that it can make or unmake any law it chooses.

The Crown (ie government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative. That would be precisely the effect were the Crown to trigger Article 50 without reference to Parliament.

The completion of the Article 50 withdrawal process would result in the loss of rights for individuals. However, what Parliament has given (through the 1972 Act) can only be taken away by Parliament. It should escape no one that the desire of those supporting Brexit – that the UK parliament should have its sovereignty better respected – is precisely the outcome of the High Court’s decision.

Respect for the Rule of Law

Much of the media commentary surrounding the decision of the High Court has been about the lack of accountability of the judges in the face of the majority victory in the referendum for leaving the EU (51.9% against 48.1%).

Who are the judges to fly in the face of the wishes of the majority who voted for Brexit? The answer to this question is that the judges, far from being the ‘enemies of the people’ as the popular press would have us believe, are the independent authority whose task it is to uphold the rule of law in the midst of a political storm.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected. The judges are there to provide independent judicial review of executive action to ensure precisely that the executive/Crown/Prime Minister act within their powers and do not act unlawfully or against the wishes of a sovereign Parliament. The judges are the guarantors of individual rights and liberties and it is absolutely their role to defend the Constitution, to defend the rule of law, against the arbitrary and unaccountable use of executive power.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers and judicial review of executive action is exactly the legal tool required in order to ensure that the use of executive power is not arbitrary, unlawful or ultra vires. This is precisely the role of the judges and the purpose of a Constitution (written or otherwise) and for that we should all be thankful.

How curious then that the Lord Chancellor and justice secretary, Liz Truss, should be so underwhelming in her endorsement of the principle of judicial independence and so lacklustre in her defence of the judiciary in the face of hostile media attacks. The Bar Council of England and Wales has lost no time in pointing out the absence of leadership shown by the Lord Chancellor and has rightly expressed concern about the rule of law being undermined in the name of press freedom.

A photo of Liz Truss, current Home Secretary, standing at a podiumLord Chancellor and Justice Secretary Liz Truss was criticised for her lukewarm response to criticism of the judiciary following the ruling of 3 November. Photo © Policy Exchange (CC BY 2.0)

Not surprisingly, the government is appealing against the judgment of the High Court with a decision expected in December. This will enable the Justices of the Supreme Court (exceptionally all of them) to consider the strength of legal argument on both sides and a further, ironic, twist in the story could then be a preliminary reference to the EU’s Court of Justice in Luxembourg for its interpretation on the matter.

What is clear is that this profoundly important judgment of the High Court will resonate for years to come and that resonance comes not so much from the political consequences of the decision, but from its statement about the boundaries and the limits of executive power.

 

Professor Susan Millns is Head of the Department of Law in the School of Law, Politics and Sociology at the University of Sussex.

 

Brexit: the lawyer’s first 100 days

Erika Szyszczak
Erika Szyszczak

Reposted with permission from the UK Trade Policy Observatory

 

The “first 100 days” has become a standard by which to evaluate important political times. Undoubtedly, the momentous decision on 23 June 2016 to break up the current geopolitical space of Europe will be examined by historians as a decisive period of modern European history.

From a lawyer’s perspective the most striking feature of the last 100 days has been the legal uncertainty of how to implement the referendum result. This represents the challenge we love. So this blog post examines some of these uncertainties.

Dreams of a quick divorce

Dreams of a fast divorce from the EU have been thwarted by a lack of legal consensus on who may trigger the Article 50 TEU notification to leave the EU, and as to when is the optimal time to do it. The lack of a pre-nup gives much scope to the lawyer.

PM Theresa May is determined to retain a tight rein on this legal act, considering it within the powers of the executive. But this position is being challenged in the courts. For example, in the English High Court, several applications for judicial review have been given leave to proceed and the skeleton argument in the lead judicial review action has been published.

The thrust of the legal argument is that the correct UK constitutional requirement in order to trigger Art 50 is for parliamentary scrutiny and approval, alongside consultation with the devolved administrations in Scotland, Northern Ireland and the Welsh Assembly.

The legal issues framing the decision of when to trigger to Article 50 are also contentious.

Domestically, there is the need to reconcile the future internal relationship of the UK with Northern Ireland and Eire and also with Scotland and Wales.

The UK must also reconcile its future relationship with its largest trading partner: the EU. But there are other relationships to consider that are the offspring of the relationship with the EU. For example, there are third states linked (currently and in the future) in trade agreements with the EU, and the World Trade Organisation (WTO). It is a matter of legal conjecture as to what should be in the content of the withdrawal agreement with the EU under Art 50(2), and how far this agreement will set out the future legal relationship between the UK and the EU and other trade arrangements.

Living apart

How will the UK untangle 40 years of marriage? A first step will be to examine the existing EU law that has been transposed into domestic law. The UK has always fought hard to determine the final shape of EU law, and has had little difficulty in transposing EU law into domestic law using the ‘copy out’ procedure. One example of is the recent transposition of procurement law into UK law.

Lawyers must find a way to give effect to EU law that the UK wishes to retain in the future.

The repeal of section 2 of the European Communities Act 1972 is at the heart of the UK withdrawal process. Sect 2 gives effect to the supremacy and direct effect of EU law, and allows for EU Directives to be implemented quickly into domestic law by means of a Statutory Instrument (SI). Thus lawyers must find a way to give effect to EU law that the UK wishes to retain in the future, especially EU law which has been transposed using the SI procedure, as well as laws necessary to ease future trade deals.

Just because we’re divorced doesn’t mean we can’t be friends

Looking to the future relationship with the EU there are a number of existing legal trade frameworks developed by the EU with non-member states which could be bought off the shelf. The most immediate choices would be to take a look at the EEA Agreement, the Deep and Comprehensive Free Trade Agreement with Ukraine, the comprehensive economic and free trade agreement with Canada or the EU-Turkey customs union.

But PM Theresa May appears to want something more bespoke for the UK. High on the shopping list of UK desires is access to the Single Market without the concomitant demands of membership of the Single Market; in particular, special rules on the free movement of persons and not having to contribute to the finance of the EU. Here there is little scope for mediation: the EU has made it clear that there is no Single Market a la carte.

Access to the Single Market would only ease trade in a limited way. The UK would not participate in the rule-making for the Single Market and also would not be able to stop the influence of the European Court of Justice (CJEU) on the interpretation of the Single Market rules, in particular the definition of no-tariff barriers to trade, the scope of mutual recognition and the host of legislative lacunae filled by the CJEU in its day-to-day work.

The legal limits on finding future trading partners

The indications are that the UK seeks future trading partners in a similar bespoke fashion, spurning the tendency for large multi-party deals.

Dr Liam Fox, the international trade secretary, has indicated to the press that exploratory talks with non-EU states such as India have already taken place.

Liam FoxDr Liam Fox, International Trade Secretary, has said he is already in talks with India over a trade deal.
Photo © Chatham House.

This is tricky from a legal perspective.

The UK is tied to the rules of membership of the EU; it cannot negotiate any new deals until after Brexit has occurred. EU trade policy is within the exclusive competence of the EU. Even in policy areas where the EU has shared competence with the member states, the UK would still be limited in its actions by Article 4(3) TEU, the duty of fidelity. So, for example, the UK may not depart from a position agreed by the EU in international negotiations. Even where mixed agreements are found the European Commission takes the lead negotiating position for the EU and the member states.

There are press reports that legal advice given to Dr Liam Fox suggests that “there is a high risk” of the European Commission starting infraction proceedings against the UK if such talks went ahead, with the UK being landed with a “big fine”.

This is sensationalist reporting. Any infringement proceedings brought by the European Commission under Article 258 TFEU are not automatically brought before the CJEU. There is a long period of negotiation. Only when talks break down will the European Commission go to court. This takes several years. If the CJEU finds a member state in violation of EU law, a member state is under a duty to comply with the judgment of the Court. It is only when a member state does not comply that financial sanctions come into play under Article 260 (2) and (3) TFEU. Fines do not automatically flow from a breach of EU law: the European Commission must bring a second action against the member state.

Brexit means Brexit: but what does it mean?

Law and lawyers will have a central role to play in easing the UK divorce from the EU and drawing up the divorce settlement. PM Theresa May has not acted hastily or given away details on what the UK negotiating stance will be, or when it will start with earnest. But she cannot delay for long. The next 100 days will bring more certainty to many of the legal issues churned up in the aftermath of 23 June 2016.

Erika Szyszczak is Professor of Law in the School of Law, Politics and Sociology at the University of Sussex, and a member of the University’s UK Trade Policy Observatory