1st Report, 2014 (Session 4): Report on the proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014

SP Paper 473

RACCE/S4/14/R1

1st Report, 2014 (Session 4)

Report on the proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014

CONTENTS

Remit and membership

Executive summary
Introduction and background

Parliamentary scrutiny
Scrutiny by the Rural Affairs, Climate Change and Environment Committee
Scottish Government’s consultation
Reason for the order
Background to the order
The Salvesen v Riddell case and the Supreme Court
The consequences of the Supreme Court ruling
Work towards a legal remedy
Scope/contents of the order

Issues considered by the Committee

Alternatives considered
European Convention on Human Rights compatibility
Timescales
Number of landlords/tenants affected
Groups of landlords/tenants affected
Effectiveness of section 73
Proposed cooling-off period and mediation
Potential for compensation
Guidance
Figure 1: Groups affected by the defect (provided by the Scottish Government)

ANNEXE A: EXTRACT FROM THE MINUTES OF THE RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE
ANNEXE B: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE
ANNEXE C: LIST OF OTHER WRITTEN EVIDENCE

Remit and membership

Remit:

To consider and report on agriculture, fisheries, rural development, climate change, the environment and other matters falling within the responsibility of the Cabinet Secretary for Rural Affairs & the Environment.

Membership:

Claudia Beamish
Graeme Dey (Deputy Convener)
Nigel Don
Alex Fergusson
Rob Gibson (Convener)
Cara Hilton
Jim Hume
Richard Lyle
Angus MacDonald

Committee Clerking Team:

Clerk to the Committee
Lynn Tullis

Senior Assistant Clerk
Nick Hawthorne

Assistant Clerk
Alison Wilson

Committee Assistant
Ross Fairbairn

Report on the proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014

The Committee reports to the Parliament as follows—

EXECUTIVE SUMMARY

1. The Committee regrets that an Act passed in 2003 by the Scottish Parliament has been found by the Supreme Court to contain a provision which is not compatible with the European Convention on Human Rights (ECHR). Though the Act was passed by the Parliament in good faith, and with the best intentions, rectifying the defect that has been identified in the 2003 Act may have distressing consequences for some of those affected.

2. The Committee acknowledges the need for the proposed draft order, and reflects that the evidence it received also acknowledges the need for a correcting order. Furthermore, the Committee believes, as did the vast majority of those who submitted evidence, that the proposed draft order does, broadly speaking, achieve the outcome required of the Scottish Parliament (guided by the Scottish Government) by the Supreme Court.

3. The Committee also recognises the work carried out by the Scottish Government, and member organisations such as the Scottish Tenant Farmers Association, National Farmers Union of Scotland, and Scottish Land and Estates, to identify those individuals and farms potentially affected by the defect. The Committee welcomes efforts made by the Scottish Government to identify the different groups of people affected by the defect, and to tailor the remedy for those groups to their particular circumstances, but is aware that there may be cases yet to be identified and therefore recommends that the Scottish Government and all relevant membership organisations do all they can to continue to identify potentially affected farms.

4. The Committee is broadly satisfied that the order proposes a legal remedy for three of the five groups identified, and is pleased to note that those in groups 4 and 5, whose cases are deemed to have moved outwith the scope of the order, will have access to mediation services.

5. The Committee has carefully considered the different routes to the same outcome for those in groups 1-3 proposed in the draft order to give a view on whether they appear to be fair, balanced, and appropriate. The Committee is broadly of the view that the proposed draft order is appropriate in this regard, but asks the Scottish Government to consider and provide clarification on two issues—

  • whether a bilateral agreement which resulted in the tenant receiving a secure 1991 tenancy in good faith of both parties in the period affected by the defect could be challenged in the courts, and therefore that the tenancy could potentially be converted, or whether such a tenancy would not be considered a “relevant tenancy” as defined in the proposed draft order; and
  • whether the wording of article 3 (as read with section 72A(1)), which deals with ongoing cases currently sisted (paused or suspended for an indefinite period of time) at the Scottish Land Court, is sufficiently unambiguous as to allow the court necessary flexibility but prevent any ruling which might be at odds with the Supreme Court’s judgement.

6. The Committee believes that mediation will have a central role to play in trying to minimise any negative impacts of the proposed draft order, particularly on tenants, and therefore welcomes the Cabinet Secretary’s confirmation that the Scottish Government will fully fund and participate (where that is agreed by both parties) in mediation for anyone affected by the defect, which will be provided by independent professional mediation service providers.

7. The Committee also believes that payment of compensation may be required for some of those with a valid case if they have suffered financial or personal loss as a consequence of the defect or the proposed draft order coming in to force. Whilst acknowledging that it is difficult for the Scottish Government to accept general liability for all those disadvantaged by this situation, the Committee believes that the Government must accept liability for anyone disadvantaged by the remedy put in place, and for any stress suffered by those involved. The Committee therefore welcomes the Cabinet Secretary’s helpful confirmation that compensation may be a valid outcome for some of those affected.

8. The Committee recommends that the Scottish Government provides clarity on potential time bars and the application of, and restrictions associated with, the relevant legislation on this issue.

9. Finally, the Committee welcomes the Cabinet Secretary’s clarification that for any claim against the Scottish Government brought forward by groups covered by the proposed draft order, and where mediation has been entered into, any time bar period will not be treated as having started until the end of the mediation period, or 28 November 2015, whichever date is earlier. However, the Committee asks the Scottish Government to confirm its position on potential claims made against the Scottish Government by those in groups 4 and 5.

INTRODUCTION AND BACKGROUND

Parliamentary scrutiny

10. The proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 20141(SG 2013/261) was laid in the Scottish Parliament, by the Scottish Government, on Friday 22 November 2013, along with an accompanying Statement of Reasons (SG 2013/262).

11. The proposed draft order is laid before the Scottish Parliament for a 60 day consultation period. The Scottish Government must have regard to any written observations received during that period before laying a draft order for approval by the Parliament, subject to the normal affirmative procedure. This is known as a super-affirmative procedure.

12. The Rural Affairs, Climate Change and Environment (RACCE) Committee agreed its approach to scrutiny of the proposed draft order at its meeting on 20 November 2013.

13. The proposed draft order was also scrutinised by the Scottish Parliament’s Delegated Powers and Law Reform Committee, which published its own substantial report2on 28 January 2014.

Scrutiny by the Rural Affairs, Climate Change and Environment Committee

14. As the Scottish Government is formally consulting on the proposed draft order, and given that the issue is specific to a relatively small number of cases, the Committee did not issue a public call for views. The Committee asked all those invited to give oral evidence to send a copy of their submission to the Scottish Government to the Committee, or to make a separate written submission to the Committee summarising their views on the Order.

15. The Committee took oral evidence from: Scottish Government officials, the Scottish Tenant Farmers Association (STFA); Scottish Land and Estates (SLaE); the National Farmers Union of Scotland (NFUS); the Royal Institution of Chartered Surveyors (RICS); the Scottish Agricultural Arbiters and Valuers Association (SAAVA); the Law Society of Scotland (LSS); and the Cabinet Secretary for Rural Affairs and the Environment.

16. Extracts from the minutes of all the meetings at which the proposed draft order was considered are attached at Annexe A. Links to the Official Report of the relevant meetings are attached at Annexe B. A link to all written submissions, including supplementary written evidence and correspondence, can be found at Annexe C.

Scottish Government’s consultation

17. The Scottish Government published its consultation on the proposed draft order on 22 November 2013, and the consultation document is available at the link provided in footnote 1 above.

18. The Scottish Government’s consultation document invites responses on the proposed draft order by 7 February 2014. The consultation document outlines the background to the proposed draft order; details its scope; and states its effect. It also includes a flowchart showing groups that will be affected; lists the consultees; includes a copy of the proposed draft order itself; and copies of the explanatory and policy notes.

Reason for the order

19. The Statement of Reasons which was laid alongside the draft proposed order states—

“The reason for proposing the draft Order is that on 24 April 2013 the Supreme Court issued its judgment in the case of Salvesen v Riddell, which involved a dispute between a land owner and a tenant over the dissolution of a Limited Partnership. The judgement identified a defect in section 72, holding that the effect of the operation of section 72(10) contravened landlords’ rights in certain circumstances under Article 1 of the First Protocol. The Supreme Court suspended their judgement until 23 April 2014 to allow the Scottish Government time to consult with the industry and address how best to achieve the necessary correction.

In their judgement the Supreme Court recognised that any adverse effect on the rights of tenants resulting from the decision will need to be resolved via a “fair and constructive process” agreed by the Parliament and guided by Scottish Ministers. In particular, the Court anticipated that this process would involve consultation with both landlords and tenants.

A Compliance Order following section 13 of the Convention Rights (Compliance) (Scotland) Act 2001 was the most appropriate mechanism with a reasonable prospect of delivering a solution within the timeframe set by the Supreme Court.

Stakeholders bodies representing Tenants and Landlords (STFA, NFUS, RICS, SLE and SAAVA) were consulted during the preparation of the draft Order and further consultation will take place with these stakeholders during the period of the 60 day public consultation.”

Background to the order

20. The proposed draft order makes amendments to the Agricultural Holdings (Scotland) Act 20033(the 2003 Act) to remove the incompatibility, arising from section 72(10) of that Act, with landlords’ Convention rights. The proposed draft order seeks to remove the incompatible effect of section 72(10) by modifying section 72 inserting a new section 72A into the 2003 Act. Section 72A provides a new route of access to section 73. Article 3 and 4 of the order make particular provision for ongoing cases.

Security of tenure under 1991 Act tenancies

21. The Agricultural Holdings (Scotland) Act 1991 (as amended)4(the 1991 Act) is the main piece of legislation governing agricultural tenancies5. It was a consolidating Act and brought together legislation on farm tenancies made between 1949 and 1991. In a tenancy granted under this legislation the landlord’s rights to recover possession at the end of the lease are restricted. This meant that where the tenant wished to continue farming leases did not come to an end at the end of a term specified in the original lease, and instead they continued by tacit relocation6, and they are heritable and have passed from generation to generation in many cases. Where a landlord serves a notice to quit on the tenant, the tenant may serve a counter notice on the landlord, which means that the landlord requires to seek an order from the Scottish Land Court (SLC) to enforce the notice to quit, and the legislation specifies how the court must consider such an application from a landlord, the effect of which is to protect the rights of the tenant. A “91 tenancy” therefore provides the tenant with security of tenure and limits the landlord’s ability to obtain vacant possession of land.

22. The effect of this legislation was to inhibit the creation of new farm tenancies, because if a landlord were to let land under such a tenancy they would have little prospect of regaining vacant possession. Among other things this would affect the value of the land should they ever wish to sell, because land with a sitting tenant is much less valuable than land with vacant possession (the value is approximately 50-60% of land with vacant possession).

Limited partnerships

23. Limited partnership tenancies evolved as a response to the security of tenure available to tenants under the 1991 Act, to allow the landlord a means of regaining vacant possession of the land. In a limited partnership, the landlord or their agent is the limited partner, and the tenant is the general partner. The limited partnership lasts for a minimum term specified in a partnership agreement. At the end of the term specified in the partnership agreement, either the landlord or tenant can bring the partnership to an end, which will effectively end the tenancy.

The Agricultural Holdings (Scotland) Act 2003

24. Reform of the agricultural holdings legislation was part of the land reform programme carried out during the first session of the Scottish Parliament. Following the reports of the Land Reform Policy Group, the then Scottish Executive considered that a better legal arrangement was needed, and it developed proposals which became enacted in law in the 2003 Act. This Act created two new types of tenancy: Short Limited Duration Tenancies, which have a maximum duration of five years, and Limited Duration Tenancies, which have a minimum duration of 15 years. The main feature of these tenancies in terms of security of tenure is that the legislation sets out a procedure to follow for serving notices when the tenancy is coming to an end, and assuming these are followed, the tenancy will end as specified in the lease, i.e. they provide a new vehicle for letting land without giving the tenant the security of tenure available under the 1991 Act.

25. The then Scottish Executive’s initial proposals did not intend to alter arrangements for existing limited partnership tenants. Nor did they envisage a right to buy for tenant farmers. When the proposals for a draft bill were made, the then Scottish Executive consulted on a pre-emptive right to buy for secure tenants (i.e. farmers with tenancies under the 1991 Act or earlier legislation in their own right). This pre-emptive right to buy remained in the Bill when it was introduced to the Parliament, and it was enacted in the 2003 Act. The right allows a tenant to register an interest in part or all of the land they rent with the Registers of Scotland, and then they have a right to buy the land should the landlord want to sell or transfer it. If they cannot agree a price with the landlord, the legislation provides a process for appointing an independent valuer.

26. Many landlords sought to bring an end to limited partnership tenancies around the time the legislation was being developed (at the time of the draft Bill consultation). When the Bill was being considered by Parliament the concern of landlords was exacerbated by suggestions by Ministers that the pre-emptive right to buy could be extended to existing general partners. The then Executive was concerned that some of these notices were made by landlords seeking to avoid the impact the new legislation might have, rather than because this was something that they would have done for other legitimate reasons. This led the Executive to bring forward amendments which were agreed to by the Parliament and which are now enacted in sections 72 and 73 of the 2003 Act. These sections relate to the rights of tenants who were general partners in a limited partnership tenancy where the landlord gave notice to end a limited partnership tenancy after 16 September 2002 (the date when The Agricultural Holdings (Scotland) Bill was introduced to the Scottish Parliament). Section 72 gives such tenants the ability to seek conversion of the lease to a 1991 Act tenancy in their own right with the benefit of the pre-emptive right to buy.

27. Section 72 affects tenants differently depending on when the notice of dissolution was served (or other event triggering the termination of the tenancy occurred). Where the termination notice was served between 16 September 2002 and 30 June 2003 the general partner may serve notice under section 72(6), which will continue the tenancy as a 1991 Act tenancy with security of tenure. The general partner will then be in the position of the tenant in their own right. In such cases, the landlord may apply to the SLC for an order disapplying the effect of section 72(6). But a landlord will only be successful if the SLC is satisfied that the notice was not served for the purpose of depriving the general partner (tenant) of the benefit of section 72(6) and the SLC considers it reasonable to make the order.

28. By contrast, where the termination notice was served on or after 1 July 2003, the general partner can still become the tenant by virtue of section 72(6) but section 72(10) of the 2003 Act then permits the landlord the benefit of section 73. Access to the relief given by section 73 is denied to landlords who served notice before 1 July 2003. 1 July 2003 is the date when section 72 of the 2003 Act came into effect.

29. Section 73 modifies the requirements for the service of a notice to quit leading to recovery of vacant possession by the landlord. It ensures that the landlord can terminate the lease on the expiry date (or anniversary of that date) and obtain vacant possession. However, a general partner (now the tenant) obtains in most circumstances a guaranteed notice period before they are required to quit the land. There is a double notice provision - firstly the landlord must give the tenant notice not less than two years, or more than three years before the end of the lease - notice that they intend to give notice to quit. Then the notice to quit itself must be given not less than one year, or more than two years before the end of the tenancy specified in the lease, or where the lease has continued beyond the term stipulated at the end of a period of continuation. The landlord may also apply to the SLC to reduce these notice periods.

The Salvesen v Riddell case and the Supreme Court

30. The validity of section 72 of the 2003 Act was challenged in the Salvesen v Riddell case, where a ruling by the SLC was appealed to the Court of Session. The Court of Session found that section 72 was outside the legislative competence of the Scottish Parliament as it was incompatible with landlords’ ECHR rights to peaceful enjoyment of their property without interference under Article 1 of the First Protocol to the Convention. The Court of Session did not specify a remedy, and the parties settled out of court.

31. The Lord Advocate, acting on behalf of the Scottish Government, was granted leave to appeal the Court of Session’s judgement to the Supreme Court since the validity of the legislation was a matter of general public importance. The Supreme Court’s judgement was given on the 24 April 20137. It agreed with the Court of Session that there was a violation of landlords’ Convention rights. However the Supreme Court was more specific about the extent of the breach. It found that only subsection 72(10) of the 2003 Act was incompatible with landlords’ rights and so was outwith the legislative competence of the Scottish Parliament.

32. A press summary accompanying the judgement outlines the Supreme Court’s findings—

“The relevant provisions are expressed in clear and unequivocal language. Section 72 can be read only in a way that is incompatible with the A1P1 right. It is plain that the whole section needs to be looked at again, as does its relationship with section 73. But the finding of incompatibility ought not to extend any further than is necessary to deal with the facts of this case, and it is important that accrued rights which are not affected by the incompatibility should not be interfered with. The incompatibility arises from the fact that section 72(10) excludes landlords of continuing tenancies from the benefit of section 73 if their notices were served between 16 September 2002 and 30 June 2003. So the Court limits the decision about the lack of legislative competence to that subsection only.”8

The consequences of the Supreme Court ruling

33. The Supreme Court recognised that the legislation has had effect from 2003 and that a number of parties that were not involved in the Salvesen v Riddell court case may have been affected. To be in the affected group a party would need to have served or received a dissolution notice for a limited partnership between 16 September 2002 and 30 June 2003. The diagram in the Scottish Government consultation (reproduced in Figure 1) sets out circumstances of potentially affected parties—

  • where notice to terminate the partnership has been served but the case has not yet reached the termination date (group 1);
  • where notice to terminate has been served but parties have reached a bilateral agreement such as: extending the period of the limited partnership; withdrawal of the dissolution notice; vacant possession is recovered; the tenancy has been converted to a Short Limited Duration Tenancy or a Limited Duration Tenancy, or some other agreement has been agreed (group 5);
  • where the general partner (tenant) may have served a claim notice for a secure tenancy, with no subsequent challenge from the limited partner (the landlord). This may have resulted in—

    - the tenant now having a full 1991 tenancy (group 2); or

    - the landlord having sold either to the tenant exercising a pre-emptive right to buy (group 4a), or a new landlord (group 4b);

  • the general partner (tenant) may have served a claim notice for a secure tenancy, with the landlord challenging the claim by applying to the SLC for an order under section 72(8) of the 2003 Act. In such circumstances—

    - cases may be sisted (group 3); or

    - a bilateral agreement between tenant and landlord may have been made (group 5).

Work towards a legal remedy

34. Since the Supreme Court’s judgement was given, the Scottish Government has been working to develop a legal remedy which would make the relevant provisions of the 2003 Act compatible with ECHR. In doing so, it consulted with all relevant stakeholder member organisations.

35. The Scottish Government has tried to establish exactly how many limited partnership tenancies are affected by the judgement. It gathered information through representative organisations; it created a web-page which allows people to register if they think they have been affected; and the Cabinet Secretary wrote to tenant farmers and landlords who may be involved in limited partnerships to ask any parties who may be affected to register through the web page, or contact the Scottish Government by email or telephone.

Scope/contents of the order

36. The draft order seeks to correct the incompatibility in the legislation identified by the Supreme Court. It readjusts the legal position of parties to a limited partnership which was dissolved and who the Scottish Government considers remain directly affected by that legal defect. It does not address the issue of losses sustained as a consequence of the defect. As set out above the order affects the legal position of those in groups 1, 2 and 3. Since people within these groups are not being reinstated to their original position they may have incurred loss and may also seek compensation but this is being left to the remedies available under the existing law.

37. Other groups are not addressed by the order and it makes no provision to redress any losses incurred by such people.

38. The Scottish Government consultation document states that—

“It may well be that one or both of the parties have taken action which moves them beyond the defect by, for example, selling their property or entering into a bilateral agreement other than a 1991 Act tenancy. These individuals may or may not be content.”9

39. The proposed draft order seeks to provide landlords in groups 1-3 with a means to recover vacant possession—

  • where the dissolution notice was served between 16 September 2002 and 30 June 2003 but where the termination date is still in the future and so notice under section 72(6) may still be served (group 1). If such a notice is served the proposed draft order allows the tenant the tenancy in their own right but section 73 gives the landlord a route to termination of the lease and the recovery of vacant possession after a double notice period;
  • where the landlord was served with a claim notice under section 72(6) and the tenant now has a 1991 Act tenancy in their own right (group 2). The proposed draft order provides that the landlord has an option (though not an obligation) of converting the secure tenancy to one which is subject to the section 73 process (route to vacant possession after a double notice period), by serving notice to that effect during a 12 month period starting on 28 November 2014 (to allow a cooling-off period). If the landlord does not convert the tenancy by 27 November 2015 the secure tenancy remains in place; and
  • sisted cases (group 3). In these cases there is a live court dispute concerning termination of the tenancy that requires to be completed. The SLC (or other court dealing with the case on appeal) must dispose of the case as it considers reasonable. The action could be withdrawn by either party so that the section 73 double notice period would apply. Alternatively the court could modify the section 73 process by providing for shorter notice periods or the court could itself terminate the lease. In addition the court is given power to deal with such other matters relating to the tenancy or its termination as it considers appropriate. This will allow the court to take account of the individual circumstances of each case and for it to make a decision as to when it would be reasonable for each individual tenant to remove and the landlord to recover vacant possession.

ISSUES CONSIDERED BY THE COMMITTEE

Alternatives considered

40. The proposed draft order states—

“…the Scottish Ministers are of the opinion that there are compelling reasons for making a remedial order as distinct from taking any other action.”10

41. When asked what alternative actions had been considered by the Scottish Government, and why they had been discounted, David Balharry, the Project Team Leader for the proposed draft order in the Scottish Government, told the Committee that alternatives of emergency legislation or a bill were discounted due to not wanting to curtail time for Parliamentary scrutiny (in the case of emergency legislation), and lack of time in the Scottish Government’s legislative timetable (in the case of a bill).

42. In terms of alternative policy options, he added—

“We looked at an option to go from where we are now and put in place legislation to allow for instant vacant possession. There were policy concerns about how fair that would be, so we have opted not to go for instant vacant possession, but for it to take place over a period. Regarding the legal options for achieving that, we felt that the mechanism that allows for the use of a convention compliance order was the most appropriate in the circumstances.”11

43. The Cabinet Secretary told the Committee that the proposed remedy allows all landlords affected by the defect in section 72 access to the section 73 process but the route to that process is slightly different for each group. The Government chose not to transfer all cases into section 73 directly because of the different circumstances that those affected would be in and the desire to seek as fair and balanced outcome as possible.

44. In written evidence, the LSS states that the proposed draft order does what the Scottish Government was asked to do by the Supreme Court. This was also acknowledged in other written submissions to the Committee, such as those by RICS and the STFA. Oral evidence to the Committee from all stakeholders broadly agreed that the draft order is an appropriate mechanism to correct the defect and that it achieves what the Scottish Government has been asked to achieve.

45. The Committee is satisfied that making a remedial order subject to a super-affirmative procedure delivers an appropriate balance between time available for Parliamentary scrutiny and delivering a timeous outcome for those affected by the legal defect.

46. The Committee also acknowledges the very different circumstances those affected are currently in and therefore accepts the policy approach taken in the order of addressing these groups by reflecting those different circumstances is an appropriate one.

European Convention on Human Rights compatibility

47. The Supreme Court’s ruling requires that a legal remedy be put in place to ensure that the relevant provisions of the 2003 Act are compatible with ECHR. The proposed draft order proposes legal remedies for groups 1-3, but each of those groups is given a subtly different outcome in the order.

48. David Balharry and Ashleigh Pitcairn, a Solicitor in the Directorate for Legal Services at the Scottish Government, both told the Committee that the Scottish Government has taken legal advice and is confident that the draft order will provide an ECHR compliant remedy. However, David Balharry added—

“An advantage of the superaffirmative process is that the 60-day consultation period may flush out or bring to light new evidence. If new evidence did come to light, we would have to look in detail at how it would affect any ECHR issues.”12

49. In its written submission, SLaE stated that it had reservations as to whether all aspects of the proposed draft order were fully compliant with ECHR. Similarly, the STFA raised questions about tenants being faced with losing their businesses and homes as a result of an order designed to ensure that legislation was ECHR compliant. Hendersons Chartered Surveyors stated in its written response—

“In offering redress by way of remedial orders Parliament must be very clear that it should not interfere with the Human Rights of Tenants.”13

50. Oral evidence to the Committee from stakeholders noted that human rights of both tenants and landlords could potentially be affected by the remedy outlined in the draft order. Angus McCall, the Executive Director of the STFA, noted “I think that there is a significant deprivation of tenants’ rights in the order”14, adding that the STFA would be seeking legal advice on the human rights issue.

51. Supplementary evidence from the STFA after they consulted Counsel raises specific ECHR concerns regarding the treatment of groups 1 and 2, stating—

“Counsel is critical of the different procedural remedies being proposed by the Order, for example tenants in Group 1 should perhaps have the same right to a hearing before the Scottish Land Court as tenants in Group 3, being in similar situations with identical outcomes (Para6). To avoid potential breaches of Articles 14 and 6 should the Scottish Land Court be allowed to resolve these issues?”15

It goes on to add—

“The Scottish Parliament and the Scottish Government should revisit the proposals for dealing with Group 2 landlords and tenants. Each circumstance will be different and some of the tenancy arrangements may have been subject to the same decision-making process as cases in Group 5 and therefore should be treated in the same way. If this is not taken into account by the Remedial Order there may be challenges from tenants in Group 2 that their rights under A1P1, Article 8 Article 6 and Article 14 have been breached.”16

52. The Committee asked the Cabinet Secretary what his view was on the issues raised by the STFA that the proposals for dealing with groups 1 and 2 should be revisited as there is a case for them both having access to the SLC (as well as group 3) or for being treated in the same way as those in groups 4 and 5.

53. In response the Cabinet Secretary reiterated that the proposed draft order deals with the identified groups in slightly different ways due to the different circumstances. Paul Cackette, the Deputy Solicitor and Head of Group 2 in the Scottish Government Legal Services Directorate, added that the Scottish Government did not consider it would have been appropriate for the proposed draft order to have suggested a remedy whereby all those affected had their cases resolved by the SLC. This would not have delivered certainty as to the position of the parties and that the Government wanted to avoid the need to resort to a court action if at all possible.

54. Whilst some witnesses were not in a position to tell the Committee with certainty whether the proposed draft order might contravene human rights for those involved, the Committee did pursue the issue of fairness with them.

55. As is discussed again below, whilst some, such as the STFA and SLAE, raised issues which they felt potentially may not be fair on their members, Martin Hall, the President of SAAVA, perhaps summed up the situation best when he said “none of this is fair, but unfortunately we are in the position we are in.”17

56. Mike Gascoigne, the Convener of the Rural Affairs Sub-Committee of the LSS, and Malcolm Taylor, the head of land management at Bell Ingram and the factor for Airlie Estates (representing RICS), both felt that the proposed draft order was fair in that provision for appropriate waygo/compensation is included in the 1991 and 2003 acts, which would ensure that the landlord had the right to regain vacant possession, but that tenants were appropriately compensated for improvements and investment.

57. In responding to questions regarding ECHR compliance issues, Paul Cackette told the Committee—

“We were comforted by the judgment of the Supreme Court in drawing out the inconsistent outcomes that were provided for in 2003. It said that one of the problems for Mr Salvesen as an affected landlord was that he did not get “the benefit”—that is the phrase that the court used—of section 73. That comforts us in our view that section 73 is an ECHR compliant solution.”18

58. The Committee notes the comments made by the Scottish Government regarding why it is confident that the order is fully ECHR compliant. However, the Committee also notes concerns raised by stakeholders (particularly the STFA and SLaE) about the potential for human rights of both landlords and tenants being affected by the proposed draft order, and the specific concerns raised by the STFA about the different treatment of those in groups 1-3, and whether there is a case for them both having access to the Scottish Land Court (as well as group 3) or for being treated in the same way as those in groups 4 and 5.

59. The Committee recommends that the Scottish Government give careful consideration to the views of stakeholders on this issue to ensure that the draft order laid in the Parliament is fully ECHR compliant and as resistant to legal challenge as possible.

Timescales

Possible extension to the deadline given for a remedy

60. The Supreme Court ruling gave the Scottish Government until 23 April 2014 to remedy the problem which had been identified. However, the judgement of the court allowed the Lord Advocate to apply for more time to remedy the defect if that was felt necessary.

61. David Balharry told the Committee that the Scottish Government had not applied for any such extension to the timescales as the Scottish Government wanted to bring certainty to all those affected by this issue as soon as possible. He added that the Scottish Government felt it had no reason to apply for any such extension. However, he added that—

“…we hold in reserve that if issues are raised that present legal complications or that require more scrutiny, we still have an option to go back and ask for an extension, should it be necessary.”19

62. Stakeholders giving oral evidence to the Committee were satisfied with a resolution being sought sooner rather than later and felt it was important for all concerned that clarity be achieved as soon as possible.

63. The Committee notes the comments made by Scottish Government officials regarding the reasons why an extension to the time permitted for a remedy to be put in place by the Supreme Court had not been sought. The Committee also notes the support for this by stakeholders and agrees that those affected by the defect identified require clarification and certainty at the earliest possible opportunity.

Potential conflict with other Scottish Government reviews and policy

64. In its consultation response, Hendersons Chartered Surveyors states that the order should not come into force until January 2015 at the earliest, to ensure that it is not enacted whilst the Scottish Government’s review of agricultural holdings legislation is ongoing. This position was supported by the STFA.

65. Angus McCall of the STFA restated the point in oral evidence to the Committee, saying—

“The review is not very far off being completed; in fact, it is due to be completed by the end of 2014. If the cooling-off period is due to end at the same time, I would like it to be extended into 2015 to give plenty of time for negotiations and attempts at mediation between the different bodies. Once we know what the review will recommend, that might make it easier for landlords, tenants and the Government to negotiate.”20

66. Other stakeholders did not see any issue with the timings of the Scottish Government’s review of agricultural holdings legislation and the enactment of the proposed draft order. Martin Hall from SAAVA did not want the order to be delayed and Mike Gascoigne from the LSS saw no conflicts between the timing of the proposed draft order and of the agricultural holdings review.

67. Malcolm Taylor from RICS noted that the Scottish Government’s review of agricultural holdings legislation included consideration of the possibility of establishing an absolute right to buy for those with 1991 tenancies and that there should be protection for landlords from such a right to buy while those in group 2 were going through the process. SLaE agreed with this, noting that a limited partnership lease is a secure 1991 tenancy and that, therefore, an agreement to extend a partnership could now expose a landlord to a potential absolute right to buy in the future, rather than a route to recover vacant possession.

68. The Cabinet Secretary discussed the issue of the potential absolute right to buy for 1991 tenancies when he gave evidence to the Committee—

“There has been confusion and anxiety about how the absolute right to buy might affect some of the cases that have been caught by the defect. The key to that confusion is the distinction between secure 1991 act tenancies and 1991 act tenancies that are under limited partnerships. Although limited partnerships are 1991 act tenancies, the key is that limited partnership 1991 act tenancies do not carry the security of being heritable tenancies […] those who have extended limited partnerships as part of a voluntary agreement, and those who remain in limited partnership 1991 act tenancies, are not to be included in the scope of the review of the absolute right to buy and secure agricultural tenancies under the 1991 act.

I accept that, in group 2, some tenants have ended up with a secure 1991 act tenancy, but that outcome has been judged to be unlawful and is being addressed by the remedy. I also provide assurance that, if the landlord does not convert a secure 1991 act tenancy into a non-secure tenancy, we will exempt the farm from the absolute right to buy, if that measure is introduced as a result of the on-going review of agricultural holdings legislation.”21

69. The Committee notes concerns raised in evidence regarding the timing of the draft order and the Scottish Government’s current review of agricultural holdings legislation potentially causing difficulties. On reflection, given that the agricultural holdings review group is due to report at the end of 2014 and that any resulting legislative changes would not be taken forward until 2015 at the earliest, the Committee does not consider that this should cause any particular difficulties. The Committee also does not wish to see the enactment of the proposed draft order delayed.

70. With regard to the concerns raised regarding the review’s inclusion of consideration of an absolute right to buy for those with 1991 tenancies, the Committee welcomes the clarification provided by the Cabinet Secretary that if the Scottish Government decides to introduce an absolute right to buy in the future, landlords who do not convert their leases into tenancies subject to section 73 of the 2003 Act, and those who have extended limited partnerships as part of a voluntary agreement, will be exempted from the scope of the right to buy.

71. The Committee returns to the point raised by the STFA with regard to the length of the cooling-off period below.

Number of landlords/tenants affected

72. Identifying exactly how many landlords and tenants might be affected by the defect, and the draft order, has not been easy as there is no formal register of such tenancy agreements. The Scottish Government has therefore made efforts to identify the numbers potentially affected and in which of the identified groups they might sit.

73. The Cabinet Secretary wrote to tenant farmers on 24 September 2013 in a bid to identify how many people may be affected, and directed them to an online questionnaire developed by the Scottish Government, which was aimed at assisting people in finding out whether they might be affected by the defect. The Cabinet Secretary also wrote to the Committee on 10 October 2013 to provide contact details for any constituents of RACCE Committee members who thought they might have been affected.

74. However, Angus McCall told the Committee that the Scottish Government had not written to every tenant farmer in Scotland and that he thought that there would be quite a few individuals who would not be aware of the situation and this process. Other responses to the Committee agreed that some people might not be aware that they might be affected by the defect, and Richard Blake, a legal adviser for SLaE, also suggested that some people might be aware, but may not have come forward to identify themselves yet, as they may have felt it might prejudice their position.

75. SLaE states in written evidence that, during discussions with the Scottish Government, it appeared that 100 tenancies had been affected in total, and were in groups 1-5. It notes that the 100 figure is not mentioned in the consultation document issued by the Scottish Government. Malcolm Taylor, representing RICS, agreed that some might not be aware, such as those who had sold farms.

76. The Cabinet Secretary told the Committee that whilst the Scottish Government does not know how many notices to quit had been served to tenants with limited partnerships in the affected period, having liaised with stakeholders, he was confident that the numbers involved were in double rather than treble figures. He added that he was “relatively confident”22that most people seriously affected by the defect would be aware of the situation.

77. In terms of specific numbers, David Balharry told the Committee that fewer than 20 farms (rather than individuals) sit within groups 1-3, and around 50 farms are involved in total, taking account of those in groups 4 and 5 also. He stressed that these were not final figures but were based on the current information available to the Scottish Government. The Cabinet Secretary updated this information when he gave evidence to the Committee, stating that current estimates were that 12 cases sat in group 1, approximately 5 in group 2, and 5 in group 3.

78. The Committee appreciates that identifying the exact number of individuals, or farms, affected by the defect has not been a straightforward task, and welcomes the efforts made by the Scottish Government to identify potential cases and keep the Committee updated on this.

79. The Committee notes that it is still possible that there could be outstanding cases not yet known to the Scottish Government and therefore recommends that the Scottish Government and all relevant membership organisations do all they can to continue to identify potentially affected farms.

Groups of landlords/tenants affected

80. The Scottish Government has identified five groups of people that may be affected in different ways by the legal defect. These are described below (and summarised in Figure 1)—

  • group 1: where the dissolution notice was served between 16 September 2002 and 30 June 2003 but where the termination date is still in the future and so notice under section 72(6) may still be served. If such a notice is served the order provides for the section 73 process allowing the tenant the tenancy in their own right, but also giving the landlord a route to termination of the lease and the recovery of vacant possession after a double notice period;
  • group 2: where the landlord was served with a claim notice under section 72(6) and the general partner is now the tenant of a secure 1991 Act tenancy. The order provides that the landlord has an option (though not an obligation) of converting the tenancy to a tenancy subject to the section 73 process (route to vacant possession after a double notice period), by serving notice to that effect during a 12 month period starting on 28 November 2014 (to allow a cooling-off period). If the landlord does not exercise the option to convert then the tenancy will remain secure;
  • group 3: for ongoing cases the order provides that the SLC must dispose of the case as it considers reasonable. This could be to allow the case to proceed through the section 73 double notice period process. Alternatively the court could modify the section 73 process by providing for shorter notice periods or the court could itself terminate the lease. In addition the court is given power to deal with such other matters relating to the tenancy or its termination as it considers appropriate. This will allow the court to take account of the individual circumstances and for it to make a decision as to when it would be reasonable for landlords to recover vacant possession;
  • group 4: where the general partner (tenant) may have served a claim notice for a secure tenancy, with no ongoing challenge from the limited partner (the landlord) and the original landlord has sold either to the tenant exercising a pre-emptive right to buy ending the tenancy, or to a third party who has become the new landlord of a secure 1991 Act tenancy; and
  • group 5: where a bilateral agreement has been reached between the general partner and the limited partner. This could occur before or after the general partner serves a claim notice for a secure tenancy and there are a very wide range of circumstances which could have resulted.

81. Groups 1-3 are covered by the proposed draft order and groups 4 and 5 are not.

82. Evidence to the Committee welcomed the identification of these groups and believed that it accurately covered the different groups of people potentially affected, albeit that there may be some nuances within these groups.

Groups covered by the order

83. As stated above, the proposed draft order outlines a remedy for those in groups 1-3. Comment has also been made above about alternatives to dealing with groups 1-3 that were considered by the Scottish Government, and on potential ECHR issues relating to the way the proposed draft order deals with these groups.

84. An issue pursued by the Committee regarding group 2 was the hypothetical situation whereby a bilateral agreement had been made which resulted in the tenant receiving, by whatever means, a secure 1991 tenancy in good faith of both parties in the period affected by the defect. The Committee speculated as to whether such a tenancy would be covered by the order or not and, if it was, whether the landlord having the option to convert such a tenancy would be the right or fair thing to do.

85. In response to questioning on this issue the Cabinet Secretary and Paul Cackette made several points to the Committee—

  • that the proposed draft order contained an “opt-in” clause for landlords to cover such circumstances – i.e. it was not a given that the 1991 tenancies could not continue, rather that landlords be given a lawful route to vacant possession if they so desired;
  • that if arrangements were made in good faith, then there was therefore scope for that relationship to continue;
  • that if such an agreement was made in good faith by both parties and not as a result of the circumstances which led to the original relevant, unlawful, provisions of the 2003 Act coming into force, there may be scope for the unpicking of such an agreement to be challenged in the courts by the tenant claiming breach of contract or unjust enrichment23.

86. The Cabinet Secretary subsequently wrote24to the Committee on this issue, clarifying that—

“… we know of five cases where the tenant has ended up with a secure tenancy which resulted from the landlord either ‘acquiescing’ or ‘capitulating’. In so far as I am aware none of these five tenancies would have been granted had it not been for the defect.”

87. The Cabinet Secretary goes on to conclude—

“… we believe that the hypothetical situation does not arise. A secure ’91 tenancy, given in good faith and without duress, will be supported by written agreement and these written agreements can be appropriately examined by the courts without special provision being made in the Order.”

88. The Committee also pursued whether it was fair that those in group 2 (those with 1991 tenancies) were treated differently from the sisted cases in group 3 (discussed in more detail below). Richard Blake told the Committee that such different treatment could be discriminatory.

89. When questioned on this point, Paul Cackette told the Committee that there was no difference in the potential outcome for those in groups 2 and 3, only a difference in how the outcome is arrived at, and that this difference was necessitated by the fact that those in group 3 were already part of the SLC process and therefore needed to be resolved within that process.

90. Richard Blake told the Committee that, as the SLaE written submission also stated, he did not think the landlords should be required to “opt-in” – i.e. to be required by the order to take a proactive step to seek vacant possession of the land – rather that the vacant possession route should be automatic, with an “opt-out” available if desired by the landlord. He added that there was an argument to be made that it would be fairer if the first notice in the double notice process were deemed to have been served when the proposed draft order comes into force.

91. In terms of the sisted cases in group 3, the STFA states in its written evidence that —

“The Land Court should be directed towards the s73 timetable, but if the court grants a termination on a shorter timescale the court should ensure the tenant receives adequate compensation for his waygo claims. Both parties to the litigation process should be due proper compensation for the costs incurred and consequent stress.”25

92. Richard Blake told the Committee that article 3 of the proposed draft order gave two options for dealing with sisted cases: firstly, that the cases be removed from court; and secondly, that they remain in court, which would then make a decision on the case in accordance with the provisions set out in article 3. He added that it gave the possibility, however unlikely, of the SLC giving a ruling which would be at odds with the Supreme Court ruling, and its subsequent direction to the Scottish Parliament and Government.

93. The Committee asked Richard Blake if he agreed that the wording of article 3(3)(c) as currently drafted could lead, for example, to a tenant retaining a 1991 tenancy and he replied—

“That interpretation had not occurred to me […] there must be doubt as to whether the fact that the Land Court is given discretion complies fully with the Supreme Court judgement, to put matters back to where they should have been in 2003.”26

94. Mike Gascoigne from the LSS agreed that although the SLC may find it difficult to reach a conclusion where a tenant would retain a 1991 tenancy, there was an ambiguity about this article. He suggested the Scottish Government could consider removing or amending the relevant text to remove that ambiguity.

95. In response to this issue, Paul Cackette told the Committee that the SLC was required to have regard to the Supreme Court’s judgement in Salvesen v Riddell. Therefore the Scottish Government did not consider it an option for the SLC to exercise the power conferred by the order in relation to a case in group 3 in such a way that would be at odds with the Supreme Court’s judgement.

96. The Committee welcomes the Scottish Government’s identification of the groups affected by the proposed draft order, and all the work carried out by the Government and stakeholder member organisations in helping to establish these.

97. The Committee understands and supports the rationale for the proposed draft order only providing a legal remedy for three of the five identified groups of people potentially affected, given that only those in groups 1-3 require a change in the legal relationship between the landlord and the tenant, to ensure that the 2003 Act is fully ECHR compliant.

98. The Committee notes that it is conceivable that a bilateral agreement could have been made which resulted in the tenant receiving, by whatever means, a secure 1991 tenancy in good faith of both parties in the period affected by the defect and which could possibly be converted if such a tenancy is deemed to be covered by the proposed draft order.

99. The Committee notes the Cabinet Secretary’s statement that this situation has not arisen in the cases identified so far, and that the Scottish Government does not believe the hypothetical situation would arise as secure 1991 tenancies given in good faith would be subject to a written agreement which could be examined by the courts if an attempt was made to challenge this.

100. However, the Committee retains a concern that such a situation could, theoretically, happen, and that any secure 1991 tenancy which resulted from such a bilateral agreement could be challenged in the courts. The Committee therefore asks the Scottish Government whether, in its view, the court could convert a secure 1991 tenancy obtained in such circumstances, or whether it considers that such a tenancy would not be considered a “relevant tenancy” as defined in the proposed draft order.

101. The Committee notes that groups 2 and 3 are treated differently by the order, and whilst acknowledging the reason why this is (that the cases are in very different positions), also notes the comments made by stakeholders that this could be discriminatory. Whilst discrimination is not necessarily unlawful in itself, any discrimination needs to be justified to ensure ECHR compliance. The Committee therefore recommends that the Scottish Government give careful consideration to this issue before laying the draft order in Parliament.

102. With regard to the landlord’s option of engaging the section 73 process, the Committee notes the points raised by Scottish Land and Estates that—

  • it would be fairer if landlords in group 2 were not required to opt-in to the process, but were automatically considered to have opted-in, and to have the option to opt-out if they wished to do so; and
  • that it would also be fairer if the first notice in the double notice process was deemed to have been served when the proposed draft order comes into force.

103. However, the Committee notes the Cabinet Secretary’s explanation that having an “opt-in” clause offered a layer of appropriate protection for the tenant and considers that removing the “opt-in” and automatically serving the first notice in the double notice period as soon as the order comes into force would introduce a significant risk of non-compliance with ECHR. The Committee therefore supports the policy of the proposed draft order with regard to both of these issues.

104. In relation to ongoing cases sisted in the Scottish Land Court (group 3) the Committee considers that the current wording of article 3 (as read with section 72A(1)), which outlines how these cases should be considered by the Scottish Land Court, may not be sufficiently unambiguous as to allow the court necessary flexibility but prevent any ruling which might be at odds with the Supreme Court’s judgement.

105. Whilst it is unlikely that the Scottish Land Court would give a ruling which was not consistent with the Supreme Court’s judgement, article 3 (as read with section 72A(1)), appears to allow for this possibility. The Committee therefore recommends that the Scottish Government carefully considers the wording of article 3 in this regard.

Groups not covered by the order

106. The proposed draft order outlines a legal remedy for groups 1-3, but not for groups 4 and 5. The rationale for this given by the Scottish Government is that groups 4 and 5 contain cases which have gone beyond the scope of the 2003 Act and therefore of the proposed draft order. These are circumstances where the landlord has sold the holding to a tenant exercising a pre-emptive right to buy; a landlord has sold to a new landlord; or a bilateral agreement has been made between the landlord and the tenant.

107. The Committee heard from several stakeholders who had concerns about either the exclusion of groups 4 and 5 from the proposed draft order, or the options that would be available for those in groups 4 and 5 outwith the order.

108. In written evidence, RICS was supportive of groups 4 and 5 not being covered by the order, but stated—

“However, participants that fall within these categories may still have suffered loss if they acted in the shadow of legislation that later proved to be flawed. Therefore, we believe they should have redress by compensation from the Scottish Government. The mechanism for making a claim must be easy and not involve lengthy legal issues and the costs of solicitors and the courts.”27

109. SAAVA was also of the view that while there was no need for the proposed draft order to alter the legal status of those in group 5 it was arguable that, where bilateral agreements were arrived at, it should be possible to open up those agreements and that they should not be binding. It also believed that those in groups 4 and 5 should not be excluded from possible compensation. The issue of compensation is covered in detail below.

110. RICS also stated in written evidence that having a statutory solution for some, with others left with the prospect of taking legal action was not reasonable, and argued that some in groups 4 and 5 would prefer to have a route to vacant possession rather than the possibility of compensation. RICS therefore suggests that those in groups 4 and 5 be given an option for the arrangements made and outcomes arrived at to be set aside legally and replaced with vacant possession.

111. SLaE accepted that it could be argued that some groups, such as those in groups 4 and 5, may have gone too far in legal terms to bring them under the scope of the draft order. However, it stated in written evidence that some landlords in these groups had suffered an unlawful outcome and therefore questioned whether excluding the groups from the legal remedy in the proposed draft order was compliant with ECHR obligations.

112. In its written evidence, SLaE goes on to state—

“It is submitted that there is a strong argument to be made that the exclusion of ANY landlord who has been adversely affected by section 72 (10) is not compliant with the judgement of The Supreme Court in the Salvesen case.”28

113. SLaE also raised concerns about bilateral agreements which had been reached, such as the extension of limited partnerships. They state that these agreements had been made within the context of a legal framework which had now been ruled as unlawful. SLaE also states in written evidence that the Scottish Government’s consultation document gives the misleading impression that groups 4 and 5 have no real interest in the draft order or claims for compensation, and should have explicitly stated that those in groups 4 and 5 may have suffered an unlawful outcome and should have made a response to the consultation.

114. The Committee asked Scottish Government officials if they felt that the agreements and outcomes reached by groups 4 and 5 should, or could, be revisited, given that the legal situation that they were operating in at the time the agreements/outcomes were reached had now been found not to be competent.

115. In response, David Balharry told the Committee that the Scottish Government was required by the court ruling to rectify the outcome of people gaining secure 1991 tenancy agreements as a result of section 72(10) of the 2003 Act, and that in the Scottish Government’s view those who entered into bilateral agreements do not fall into that category. He added that the court ruling also stated that the remedy should not be extended further than was necessary and that accrued rights (not affected by the ECHR incompatibility issue) (groups 4 and 5) should not be interfered with.

116. However, he acknowledged that groups 4 and 5 had been influenced by the understanding of the legislation at the time, which was now known not to be correct and that harm may therefore have been caused and may therefore require further examination by the Scottish Government. However, he also stressed that these groups did not require a change to the legal relationship because the outcomes were lawful in their own right.

117. The Committee also pursued with officials whether there were any cases in groups 4 and 5 in which the SLC had made a ruling based on its perceptions of the legal rights of individuals at the time, which were now known to be incorrect. David Balharry said that no such rulings had been made by the SLC, only orders that allowed parties to make a bilateral agreement out of court.

118. The Cabinet Secretary reemphasised these points when he gave evidence to the Committee, stressing that, whilst bringing certainty to all involved was important, it was also important to protect the interests of those affected and to not needlessly upset businesses. He added—

“We have looked strictly at the legal position of each of the different circumstances that we are aware of and have put them into the groups that the committee has discussed. Some people are much more affected than others. Some have moved on and circumstances have changed.”29

119. and stressed that the Scottish Government would work with anyone affected by the defect who approaches the Scottish Government for assistance. Paul Cackette added that those in groups 4 and 5 would also have the option of recourse through the courts, though not necessarily the SLC, adding—

“If a bilateral agreement has been entered into but one side then wishes that they had not entered into it and perhaps did so because of a mistaken understanding of the law, which Mr Salvesen’s case has clarified, those parties must get their own advice on what their options are. However, the remedies that the parties who entered into an agreement with each other would look to take would depend on the advice that they got at the time and the advice that they get now on what to do about that. The order is not the place to deal with that set of circumstances.”30

120. The Committee understands the reasons why those in groups 4 and 5 are not covered by the proposed draft order, given that their circumstances have taken them beyond the scope of the order.

121. However, the Committee does have concerns that those in groups 4 and 5, although not requiring a legal remedy to alter the relationship between the landlord and tenant, may have made agreements, or reached an outcome, predicated on an understanding of the law which is now known to be incorrect.

122. The Committee therefore believes that mediation and/or compensation may be required for some of those in groups 4 and 5 and comments on this further in the sections on those issues below.

Effectiveness of section 73

123. Broadly, the proposed draft order opens the door for landlords in groups 1-3 to a section 73 solution to gain vacant possession (see text above and Figure 1 for a description of those in each group). Section 73 ensures that a tenant obtains, in most circumstances, a guaranteed notice period before they are required to vacate the land on the expiry of the lease. There is also the double notice provision outlined in paragraph 26 above and the landlord may apply to the SLC to reduce the notice periods.

124. The Committee pursued with Scottish Government officials what evidence they had that section 73 of the 2003 Act was currently working effectively in those circumstances where it was applicable.

125. David Balharry told the Committee that he was not aware of any evidence to suggest that section 73 was not working effectively and that the court had made no negative comment on the operation of section 73. The Committee also received no indication from stakeholders that the current provisions in section 73 were not working effectively.

126. The Committee notes the comments made by Scottish Government officials that it was not aware of any evidence to suggest that section 73 of the 2003 Act was not working effectively at present, and also notes that it heard no other views to the contrary.

Proposed cooling-off period and mediation

Cooling-off period

127. For those people in group 2 (see the definition above and Figure 1) the order provides that the landlord has an option (though not an obligation) of converting the secure 1991 Act tenancy to a tenancy which is subject to the section 73 termination process (route to vacant possession after a double notice period), by serving notice of that conversion during a 12 month period (called the “intimation period” in the proposed draft order) starting on 28 November 2014, to allow a cooling-off period.

128. There was confusion expressed by some stakeholders regarding the cooling-off period: when it would begin; how long it would lasted; and when it would conclude. Angus McCall stressed that the cooling-off period should be as long as possible to allow tenants time to “sort out their lives”31. Richard Blake warned that extending the cooling-off period beyond the time allowed for in the proposed draft order could potentially discriminate against landlords as it could hinder their ability to regain vacant possession of their land in line with the Supreme Court judgement.

129. The Committee clarified that the cooling-off period relates to the question of whether the lease will be converted or not. The period would begin on 28 November 2014 and last for 12 months. Therefore, the earliest conversion could occur would be the 28 November 2014, and the latest would be the 28 November 2015, leading to a cooling-off period of between the date of enactment and 28 November 2014 as the minimum, and the date of enactment to the 28 November 2015 as the maximum. If the landlord does not opt to convert by the end of the cooling-off period then the lease remains a secure 1991 Act tenancy.

130. SLaE stated that the proposed cooling-off period was inappropriate given that the 2003 Act already provides for a double notice to be given “to allow reorganisation of business affairs”.32It also questioned whether the cooling-off period was ECHR compliant as it believed it would place some landlords at a disadvantage.

131. In the section of this report above regarding groups 1-3, the issue of the “opt-in” to the conversion process for landlords in group 2 is discussed and is relevant to consideration of the cooling-off period.

132. The Committee notes the inclusion of a cooling-off period for those in group 2 and that this could last for approximately six months, or for as long as 18 months, depending on when a landlord decided to serve notice of conversion.

133. As stated above, the Committee supports the inclusion of an “opt-in” for landlords to convert secure 1991 Act tenancy to a tenancy which is subject to the section 73 termination process, and believes the removal of the opt-in, and of the cooling-off period, would introduce a significant risk of non-compliance with ECHR. The Committee is therefore supportive of the inclusion of a cooling-off period and is not persuaded by evidence given to it that the period should either not be included at all, or should be shortened or extended.

Mediation

134. When the proposed draft order was laid, the Scottish Government announced that it would make mediation an option during the cooling-off period. David Balharry told the Committee that mediation within this period was only an option if both parties agreed to it. If they did not, then the landlord can convert the tenancy and go through the section 73 double notice period to obtain vacant possession on the expiry of the lease.

135. He added that although mediation was open-ended and that “the parties can take it where they want”33, the Scottish Government hoped that parties would enter into it without prior commitment to one specific outcome and to consider, as part of the mediation process, what their ideal outcome might be. He gave an example of how the Scottish Government envisaged mediation operating—

“There will be issues about investments that have been made on farms. Associated with those investments is something called waygo—the moneys that the landlord has to pay—and that will have to be looked at. The ideal is that the landlord and the tenant enter mediation to find out what their ideal outcome is and what the barriers are to achieving that. Then, if necessary, they could involve the Scottish Government during the mediation process, explaining the issues that prevent them from reaching an ideal outcome and asking to what extent the Government is willing to engage to help them resolve the situation.”34

136. In its written evidence, the STFA stated that mediation must be conducted on a tri-partite basis between the two parties and involving the Scottish Government which should “provide financial support and encouragement”35. SLaE stated in its written submission—

“It could … be argued that, by offering mediation facilities (albeit not specifically within the Order), this is potentially withdrawing other rights in law that may be available to the landlord.”36

137. Several stakeholders told the Committee that they believed the Scottish Government should fund any mediation required following the enactment of the order. It was also noted that mediation in many of these cases might not be straight forward, given that it should involve three parties (landlord, tenant and Scottish Government) and it might be complicated by possible claims for compensation against the Scottish Government. It was also agreed that any mediation should be conducted by appropriate mediation services. Richard Blake told the Committee—

“On who should do the mediation, the situation is complex, because we have the agricultural holdings legislation, which as we all know is difficult, and we also have potential compensation claims, which will be built into agricultural land values as well as quantifying the loss to the individuals. There will have to be an experienced, and probably accredited, mediator. There are accredited mediators in the Faculty of Advocates and the Law Society of Scotland, and then there are the Scottish Agricultural Arbiters and Valuers Association and the Royal Institution of Chartered Surveyors of this world, whose members have experience of land values, although possibly not experience of quantifying claims.”37

138. The Cabinet Secretary told the Committee that the Scottish Government would fund mediation required to deal with cases affected by the proposed draft order, and that funding of £40,000 had been identified to cover the costs of the mediation, adding that the Government would fully fund mediation if costs were to rise above this figure, stating—

“… obviously we have to pay attention to resources and there is not a limitless pot available, but if the cost goes above £40,000 we will cover it.”38

139. He also confirmed that the mediation would be open to all those affected by the proposed draft order; would be conducted on a tri-partite basis, involving the landlord, tenant and Scottish Government (where that was acceptable to the landlord and tenant); and would be provided by independent and accredited mediators.

140. The Committee believes that mediation could play a vital role in minimising the potentially harmful consequences of the proposed draft order, particularly for tenants, and therefore encourages all involved in cases which might require mediation to enter in to the process constructively.

141. The Committee notes the overwhelming view expressed by stakeholders that mediation services should: be fully funded by the Scottish Government; be provided by a professional independent mediation service; and involve three parties: the Scottish Government; the landlord; and the tenant. The Committee is therefore very pleased that the Cabinet Secretary has agreed to all of these points raised by stakeholders.

142. However, the Committee is concerned that if one or other party is not willing to use mediation services, the only outcome left is for the landlord to secure vacant possession via section 73 of the 2003 Act. The Committee therefore calls on the Scottish Government to work closely with all membership organisations and individuals involved in this unfortunate situation to try to ensure that mediation services are used in an attempt to avoid potentially costly litigation.

Potential for compensation

143. The proposed draft order seeks to correct the legal defect, but does not address all of the possible broader consequences of the defect identified by the Supreme Court. The proposed draft order and the supporting documents do not include reference to compensation.

144. In a press release the STFA stated—

“… that tenants who are at the moment in possession of secure tenancies must be allowed to continue farming, particularly if they have invested in their businesses, anticipating continuing security of tenure… Similarly the tenants who have been undergoing legal battles to retain their farms must be compensated not only for the legal expenses they will have incurred but also for the time and stress tenants and their families have suffered, and for the loss of their expected livelihoods. Furthermore, these tenants must be allowed sufficient time to rearrange their lives.”39

145. David Balharry told the Committee that the defect coming to light is an unfortunate situation and one which has caused, and will continue to cause harm to tenant farmers, landlords, and their families. He added that the process had two distinct parts; firstly establishing a legal remedy; and secondly dealing with the cases where harm has been caused as a result of the defect in the 2003 Act.

146. In terms of why the proposed draft order makes no specific provision for compensation, David Balharry told the Committee—

“One reason why the order does not put in place generic compensation, as was discussed with stakeholders, is that the specific circumstances of the relatively small number of cases that are involved—this is below the figure of 20 I referred to earlier—are very complex. They are so different that they need to be looked at in detail, and the Scottish Government’s position is that it would like to do that. We have put in place a process of mediation to allow the details to come to the fore. Once we have those details, we can reflect further on what the best solution is.”40

147. When pressed on whether compensation could be due to some involved, David Balharry said each case would be looked at on its own facts and merits, adding—

“We have been absolutely clear to everybody all along that, if they feel that harm has been caused to them, they can make claims against the Scottish Government. Those claims will be looked at in the context of the merits of each claim. There is an awareness of the issue, but there is a great difficulty in generically accepting liability.”

148. David Balharry went on to confirm that it was not possible to give any estimation of the amount of compensation which the Scottish Government may be liable to pay to those adversely affected by the defect. Stakeholders agreed that estimating amounts of compensation was difficult but Richard Blake and Angus McCall both referred to seven figure sums being paid by landlords to tenants in previous legal cases. Both RICS and SAAVA stated that they would be happy to help the Scottish Government with the inevitably complex valuing and compensation calculations which may lie ahead.

149. In written evidence, RICS stated that it was the “collective impression”41of its membership that compensation was not adequately dealt with in the draft order, adding—

“The Scottish Government may wish to consider giving this element of the draft Order more consideration and should prepare to deal correctly, and speedily, with these cases. They may also wish to consider the provision of formal mechanics or procedure for compensation that can avoid potential litigation, as those affected may be inclined to sue the Government - which could be a drawn out affair, resulting in expensive costs.”42

150. In its written submission, the STFA states that the draft order should include a compensation scheme to “comfort those facing losing their businesses, homes and livelihood.”43The STFA adds that, should further time be required to develop such a scheme, it should be sought from the Court. However, Angus McCall later told the Committee that no set compensation scheme should be included in the order but that the order should recognise that claims will be made and that compensation is an issue, a position with which RICS and SAAVA both agreed.

151. In oral evidence, other stakeholders agreed that it would not be appropriate for a specific compensation scheme to be included in the order. Richard Blake understood the Scottish Government’s position on not accepting generic liability and being cautious, adding that calculating claims would be complex (involving claims going back to 2003 and involving uplifts in land value, tax issues, loss of agricultural property relief, other legal and professional costs and, possibly, issues that may not have been seen previously in quantifying claims).

152. Angus McCall told the Committee that the STFA were looking for reassurance from the Scottish Government and for a clear indication that it recognised that compensation would be required in some cases. However, he added that he did not want to see a compensation “gravy train”44develop, and that it was important that appropriate compensation was paid in genuine cases. Scott Walker, the Chief Executive of the NFUS, agreed that the Scottish Government must send a clear message that there will be compensation paid in appropriate cases and that the Government must not seek to whittle claims down to the smallest possible amount.

153. The Cabinet Secretary confirmed to the Committee that the Scottish Government was not ruling out compensation where it was justified, and said that the Government would be sympathetic and responsible in approaching such claims. He added that he hoped that mediation would provide the best route to achieve an appropriate outcome for all parties, but acknowledged that there may be valid compensation claims.

154. On the issue of amending the order to include reference to compensation, he said he was pleased to note that stakeholders had agreed that a generic scheme should not be included in the order, and stated that he was giving the reassurances that stakeholders were seeking in his evidence to the Committee, adding—

“I do not think that there is any need for that to be in the order. The order is about correcting an unlawful aspect of the legislation, and that is its purpose. In terms of Government policy, I make it clear to the committee today that there may be circumstances in which compensation is an option, that we will leave that on the table and that we are certainly not ruling it out.”45

155. The Committee agrees with the Scottish Government that the current situation, in which a defect in an Act passed by the Scottish Parliament has been identified by the Supreme Court, is extremely unfortunate. The Committee regrets that this has occurred and is mindful that the consequences of rectifying this defect could, potentially, be extremely upsetting and difficult for individuals involved.

156. Whilst acknowledging that it is difficult for the Scottish Government to accept general liability for all those disadvantaged by this situation, the Committee believes that the Government must accept liability for anyone who is financially and/or personally disadvantaged by the remedy put in place, and for any stress suffered by those involved.

157. The Committee notes that there was a unanimous view in oral evidence that the draft order should not include a generic compensation scheme. However, the Committee notes that some stakeholders felt the draft order should contain an acceptance of liability in appropriate cases.

158. The Committee believes that each case should be carefully considered on its own facts and merits and that a generic compensation scheme should not be included in the draft order. The Committee welcomes the Cabinet Secretary’s helpful comments which acknowledged that compensation may be a valid outcome for some involved, and that it will approach such cases sympathetically and reasonably.

159. However, the Committee also agrees with the stakeholders who stressed that it was important that the enactment of the proposed draft order did not lead to a drawn out compensation process and that any compensation was just and reasonable; made available to genuine cases only; and concluded as timeously as possible.

Potential time-bar on claims

160. The Committee asked Scottish Government officials if there would be any potential issues of there being a time bar on people being able to seek a remedy to a situation where they have been disadvantaged. In response, Ashleigh Pitcairn told the Committee that the Scottish Government did not envisage this being an issue or causing any difficulties. David Balharry also subsequently wrote to the Committee on this issue, stating—

“To the extent that any person may decide not to seek to make any claim for fear of time bar difficulties, such person will no doubt seek their own legal advice but we would point out that the law on this issue is flexible and a court can, in any event, allow exceptions. This again will be dependent on the facts and circumstances in play. We do not consider that the Order should include provision addressing time bar issues.”46

161. The Committee pursued the issue of possible time bars on claims being made with witnesses and it was clear that there was some confusion about whether claims would be for commercial loss, unjustified enrichment or for a breach of convention rights. Without knowing what sort of claim is involved the correct time bar could not be identified. Richard Blake told the Committee—

“We talked about that in the SLE technical legal group just last week. There were differing opinions, as there normally are when lawyers get together in a room. One opinion was that, for the people in groups 4 and 5, the time bar could start at the date of the Supreme Court judgment, because they do not come under the order. Another view was that the time bar would start at the date of enactment of the legislation, because the people in groups 4 and 5 might still come under the order before it is enacted. The legislation is not clear.”47

162. Mike Gascoigne of the LSS added that the time bar on claims might very well only be one year and that there may therefore be a case for the order to specify a time bar for the purposes of this order only, to end any ambiguity on the matter.

163. The Committee pursued this issue further with the Cabinet Secretary and Paul Cackette. Paul Cackette explained that the courts had a power to disapply any time bar on a case-by-case basis and that the Scottish Government considered it would be inappropriate to insert a specific time bar for this process in the order, given that all cases were different, and what may be appropriate for one case, may not be appropriate for another. He added that he was under the impression that the time bar that may apply would be five years, but that the Scottish Government would consider whether a one year time bar could be applied by the court in any of the circumstances involved in the proposed draft order.

164. The Cabinet Secretary subsequently wrote48to the Committee on the time bar issue, confirming that his view was that section 19A of the Prescription and Limitation (Scotland) Act 197349gave the courts power to disapply time bars if they were persuaded by a case to do so, and that it was appropriate for the courts to make this decision on a case-by-case basis. He added that it was also a key objective underpinning the proposed draft order to avoid litigation and not encourage the prolonging of cases.

165. However, after studying the relevant section of the 1973 Act, the Committee notes that there is a limited class of actions to which section 19A of the 1973 Act is applicable (personal injuries not resulting in death; where death has resulted from personal injuries; defamation; and harassment) and that this does not appear to include claims for unjust enrichment (see footnote 22).

166. The letter from the Cabinet Secretary goes on to state that the uncertainty with regard to time bars appears only to arise in respect of claims made against the Scottish Government. On this point, he states—

“I … undertake to the Committee that where any party enters into the mediation offered as part of the solution in good faith, the Scottish Government (for its part) will not treat any clock to start ticking for the purposes of time bar, if it arises, until the end of the mediation or 28 November 2015 (whichever date is earlier), for the purposes of a claim against the Government.

This undertaking can of course only apply to the circumstances provided for in the [draft proposed order] itself, namely Groups 1, 2 and 3. For Group 1 cases, this undertaking would apply at the end of the mediation or 2 years after the LP dissolution date (whichever date is earlier).”

167. The Committee notes all the comments made to it on the issue of time bars, including the supplementary written evidence from the Cabinet Secretary which states that section 19A of the Prescription and Limitation (Scotland) Act 1973 gives the courts powers to disapply time bars if they are persuaded by a case made to do so.

168. However, the Committee is aware that there is a limited class of actions to which section 19A of the 1973 Act is applicable, and understands that claims for unjust enrichment are not covered by the section. The Committee therefore recommends that the Scottish Government establish the facts on this issue and provides clarity on time bars, the application of section 19A of the 1973 Act, and how time bars may relate to claims which are not covered by section 19A, in any guidance provided alongside publication of the final order (see below).

169. The Committee welcomes the Cabinet Secretary’s undertaking that, for any claim against the Scottish Government brought forward by groups covered by the proposed draft order, and where mediation has been entered into, any time bar period will not be treated as having started until the end of the mediation period, or 28 November 2015, whichever date is earlier.

170. However, the Committee notes that this will only apply to groups 1-3, which are covered by the proposed draft order, and therefore asks the Scottish Government to confirm its position on potential claims made against the Scottish Government by those in groups 4 and 5, and whether there is a possibility that a one year time bar, applicable in some human rights cases, could apply to those groups. The Committee would also welcome clarification from the Scottish Government regarding its understanding of when the starting point for any such time bar would be.

Guidance

171. Scott Walker of the NFUS, told the Committee that it was very important that the Scottish Government publish guidance to accompany the final order and that any such guidance should be as clear and simple to understand as possible—

“As soon as individuals start getting into the strict legalese of what is a very complicated subject, they have to seek professional advice in order to understand it. We need to keep things simple; we need very simple flow diagrams and charts that show the actions that individuals need to take … The simpler the information that the Scottish Government issues, the more helpful it will be to individuals who are going down the mediation route, and the more helpful it will be in terms of building consensus and finding solutions.”50

172. The Committee recommends that the Scottish Government issues clear guidance, in plain English, which should be published alongside the final order and address all relevant issues (including how those in groups 1-3 can proceed; an explanation of the cooling-off period; options for those in groups 4 and 5; details of mediation services; and compensation information) as simply and in as easy to understand a way as possible. The Committee further recommends that this guidance be developed in partnership with relevant stakeholder member organisations.

Figure 1: Groups affected by the defect (provided by the Scottish Government)

 

 

ANNEXE A: EXTRACT FROM THE MINUTES OF THE RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

33rd Meeting, 2013 (Session 4)

Wednesday 13 November 2013

Decision on taking business in private: The Committee agreed that its consideration of a draft letter to the Scottish Government on climate change adaptation and behaviour change should be taken in private at future meetings, and that its approach to the expected Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014 should be taken in private at its next meeting.

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

34th Meeting, 2013 (Session 4)

Wednesday 20 November 2013

Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014 (in private): The Committee agreed its approach to scrutiny of the forthcoming Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014.

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

36th Meeting, 2013 (Session 4)

Wednesday 4 December 2013

Proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014: The Committee took evidence from—

David Balharry, Project Team Leader, ECHR Compliance Order, and Ashleigh Pitcairn, Solicitor, Directorate for Legal Services, Scottish Government.

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

38th Meeting, 2013 (Session 4)

Wednesday 18 December 2013

Proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014: The Committee took evidence from—

Angus McCall, Executive Director, Scottish Tenant Farmers' Association;
Richard Blake, Legal Adviser, Scottish Land and Estates Ltd;
Scott Walker, Chief Executive, National Farmers Union Scotland;
Malcolm Taylor, Head of Land Management for Bell Ingram and the Factor for Airlie Estate, Royal Institution of Chartered Surveyors;
Martin Hall, President, Scottish Agricultural Arbiters and Valuers Association;
Mike Gascoigne, Convener, Rural Affairs sub-committee, Law Society of Scotland.

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

1st Meeting, 2014 (Session 4)

Wednesday 15 January 2014

Proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014: The Committee took evidence from—

Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment, David Balharry, Project Team Leader, ECHR Compliance Order, and Paul Cackette, Deputy Solicitor and Head of Group 2, Scottish Government.

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

2nd Meeting, 2014 (Session 4)

Wednesday 29 January 2014

Decision on taking business in private: The Committee agreed its consideration of its draft report on the proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014 should be taken in private at agenda item 4 and at future meetings. The Committee also agreed its consideration of its approach to its scrutiny of the Common Agricultural Policy should be taken in private at its next meeting.

Proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014 (in private): The Committee considered its draft report and will consider a revised draft at its next meeting.

RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE

MINUTES

3rd Meeting, 2014 (Session 4)

Wednesday 5 February 2014

Proposed draft Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014 (in private): The Committee agreed its draft report.


ANNEXE B: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

36th Meeting (Session 4), Wednesday 04 December 2013

Oral Evidence.

David Balharry, Project Team Leader, ECHR Compliance Order, Scottish Government
Ashleigh Pitcairn, Solicitor, Directorate for Legal Services, Scottish Government

38th Meeting (Session 4), Wednesday 18 December 2013

Oral Evidence

Angus McCall, Executive Director, Scottish Tenant Farmers' Association
Richard Blake, Legal Adviser, Scottish Land and Estates Ltd
Scott Walker, Chief Executive, National Farmers Union Scotland
Malcolm Taylor, Head of Land Management for Bell Ingram and the Factor for Airlie Estate, Royal Institution of Chartered Surveyors
Martin Hall, President, Scottish Agricultural Arbiters and Valuers Association
Mike Gascoigne, Convener, Rural Affairs sub-committee, Law Society of Scotland

1st Meeting (Session 4), Wednesday 15 January 2014

Oral Evidence.

Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment
David Balharry, Project Team Leader, ECHR Compliance Order, Scottish Government
Paul Cackette, Deputy Solicitor and Head of Group 2, Scottish Government

SUPPLEMENTARY WRITTEN EVIDENCE

ANNEXE C: LIST OF OTHER WRITTEN EVIDENCE

SUBMISSIONS RECEIVED IN RESPONSE TO CALL FOR VIEWS

OTHER WRITTEN EVIDENCE

Footnotes:

1Agricultural Holdings (Scotland) Act 2013 Remedial Order 2014 consultation document (Scottish Government 2013). Available at: http://www.scotland.gov.uk/Resource/0043/00438820.pdf.

2Scottish Parliament Delegated Powers and Law Reform Committee. 9th Report, 2014 (Session 4): Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/72459.aspx.

3Agricultural Holdings (Scotland) Act 2003. Available at: http://www.legislation.gov.uk/asp/2003/11/contents.

4Agricultural Holdings (Scotland) Act 1991. Available at: http://www.legislation.gov.uk/ukpga/1991/55/contents.

5It has since been amended by the Agricultural Holdings (Scotland) Act 2003; the Public Services Reform (Agricultural Holdings) (Scotland) Order 2011 and the Agricultural Holdings (Amendment) (Scotland) Act 2012.

6Tacit Relocation in Scots Law is a principle whereby leases of land or buildings are renewed on the same conditions as previously existed if no notice of termination is given within the required period, subject to a maximum period of one year, applying in perpetuity until such notice is given.

7Judgment of the Supreme Court in Salvesen v Riddell and another, Lord Advocate intervening (Scotland). Available at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0111_Judgment.pdf.

8Supreme Court. Press summary of Salvesen (Appellant) v Riddell and another (Respondents), Lord Advocate intervening (Scotland) [2013] UKSC 22. Available at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0111_PressSummary.pdf.

9Agricultural Holdings (Scotland) Act 2013 Remedial Order 2014 consultation document (Scottish Government 2013). Available at: http://www.scotland.gov.uk/Resource/0043/00438820.pdf.

10Agricultural Holdings (Scotland) Act 2013 Remedial Order 2014 consultation document (Scottish Government 2013). Available at: http://www.scotland.gov.uk/Resource/0043/00438820.pdf.

11Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 4 December 2013, Cols 3095-3096.

12Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 4 December 2013, Col 3097.

13Henderson’s Chartered Surveyors. Written submission annexed to the submission made by the Scottish Tenant Farmers Association.

14Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3133.

15Scottish Tenant Farmers Association. Supplementary written submission.

16Scottish Tenant Farmers Association. Supplementary written submission.

17Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3153.

18Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Col 3175.

19Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 4 December 2013, Col 3098.

20Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Cols 3139-40.

21Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Cols 3172-73.

22Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Cols 3174.

23Unjust enrichment in law is a situation whereby one person is unjustly enriched at the expense of another. An obligation to rectify this is therefore put in place, regardless of the legal liability for any wrongdoing.

24Correspondence from the Cabinet Secretary for Rural Affairs and the Environment, dated 27 January 2014. Available at: http://www.scottish.parliament.uk/S4_RuralAffairsClimateChangeandEnvironmentCommittee/General%20Documents/2014.01.27_-_Cab_Sec_ECHR.pdf.

25Scottish Tenant Farmers Association. Written submission.

26Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3135.

27Royal Institution of Chartered Surveyors. Written submission.

28Scottish Land and Estates. Written submission.

29Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Col 3174.

30Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Col 3184.

31Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3141.

32Scottish Land and Estates. Written submission.

33Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 4 December 2013, Col 3104.

34Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 4 December 2013, Col 3104.

35Scottish Tenant Farmers Association. Written submission.

36Scottish Land and Estates. Written submission.

37Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3142.

38Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Col 3185.

39Scottish Tenant Farmers Association, news release dated 25 November 2013. Available at: http://www.tfascotland.org.uk/salvesen-riddell-legal-fix-must-not-create-more-casualties/.

40Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 4 December 2013, Col 3106.

41Royal Institution of Chartered Surveyors. Written submission.

42Royal Institution of Chartered Surveyors. Written submission.

43Scottish Tenant Farmers Association. Written submission.

44Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3144.

45Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 15 January 2014, Col 3187.

46Letter from the Scottish Government dated 11 December 2013. Available at: http://www.scottish.parliament.uk/S4_RuralAffairsClimateChangeandEnvironmentCommittee/General%20Documents/2013.12.11_-_David_Balharry_SG_officials_follow-up.pdf.

47Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Col 3145.

48Letter from the Cabinet Secretary for Rural Affairs and the Environment, dated 27 January 2014. Available at: http://www.scottish.parliament.uk/S4_RuralAffairsClimateChangeandEnvironmentCommittee/General%20Documents/2014.01.27_-_Cab_Sec_ECHR.pdf.

49Prescription and Limitation (Scotland) Act 1973. Available at: http://www.legislation.gov.uk/ukpga/1973/52/contents.

50Scottish Parliament Rural Affairs, Climate Change and Environment Committee, Official Report, 18 December 2013, Cols 3147-3148.

Back to top

x
This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.
Okay Tell me more