Landownership in rural Scotland remains hugely concentrated in the hands of very few large landowners. Whilst the kinds of reforms that might change this appear to be on the back-burner as far as the Scottish government is concerned, there is one group of people for whom land relations have arguably never been more strained in recent decades.
Scotland’s tenant farmers have just been dealt the latest in a series of legal rulings which further weakens their position in relation to landlords. On 3 February 2003, two hundred or so tenant farmers across Scotland were served with notices to quit. On a day of severe winter weather, many farmers, forewarned of the move, battened up their letterboxes, but to no avail. All held their tenancy in the form of a Limited Partnership – a means by which landowners hoped would prevent the tenant enjoying security of tenure. The notices were being served by landlords in anticipation of an amendment (Section 72) to the Agricultural Holdings (Scotland) Act of 2003 to be tabled the next day that would provide such tenants with the security of tenure that landowners had sought to circumvent. SNP MSP Fergus Ewing described the actions as “utterly disgraceful”.
This early display of radicalism by the Scottish Parliament has now been rendered worthless by a ruling in the case of Salvesen vs Riddell that this section of the Act is not compliant with the European Convention on Human Rights and that the tenant farmer in this case does not enjoy security of tenure. A response from the Scottish Tenant Farmers Association can be read here and a useful short legal analysis from Morton Fraser is also available here.
This ruling presents an acute political crisis. Under the terms of the Scotland Act, any Act is unlawful if it contravenes the Human Rights Act. The case has now been referred to the Advocate General, Lord Wallace (who, ironically, was Deputy Minister in the Scottish Executive responsible for the Agricultural Holdings legislation). It is now almost certain that Section 72 will be struck down causing further distress and anxiety to tenants across Scotland. I explore the legal issues at a bit more length in my next post.
It also raises wider questions about the committment of the Scottish Government to protect the interests of tenants. Despite the impatience expressed by Rural Affairs Secretary, Richard Lochead at last week’s meeting of the Tenant Farming Forum (a grouping whose role is to provide consensual views on tenant farming issues), the very structure of the Forum is problematic. The Government has indicated that it wishes any proposed reforms to be agreed by consensus by its members. Since a representative of Scottish landowners sit on this body, any consensus has to be one to which they are party and thus it is virtually impossible to promote legislative change that exclusively benefits tenants.
This situation is now untenable, particularly when other clases of tenants are being enfranchised. Tenants holding long leases of over 175 years and with at least one hundred years still to run are to made owners under the Long Leases Bill and crofting tenants have enjoyed not one but two new statutes in the past ten years. Over 1130 tenant farmers have now registered their interest to buy over half a million acres of land but will not be able to do so unless and until their farms are put up for sale. Together with the legal crisis over Section 72 and human rights, now is the time for the Scottish Government to end this centuries long struggle and introduce without delay a real right for tenant farmers to buy their farms at a time of their choosing.
The traditional objection to this from landed interests has been that this will discourage the letting of land. But such a right will only apply to secure tenancies and no such tenancies are being created anymore. It will thus have no affect at all on the willingness of landowners to let land which is now being done under the new limited duration tenancies of between five and fifteen years. These will never be the subject of a right to buy and I will be the first to stand up and oppose any such measure if it is proposed in future. It is right that land be made available by landowners to others who wish to farm it. But Scotland remains in the grip of a feudal inheritance and one which the best efforts at reforming have failed spectacularly. A statutory right to buy provides the best means of giving tenants the future they deserve, of diversifying landownership, and of providing a new impetus to land reform.