I am grateful to Lallands Peat Worrier for his comments on a draft of this blog.
A dispute over a farm in East Lothian may be responsible for the second time in two months for the provisions of an Act of the Scottish Parliament being declared unlawful and struck from the statute book due to a breach of the European Convention on Human Rights (ECHR). In a legal ruling which has had little publicity beyond the specialist pages of legal newsletters and the farming press, Lord Gill found that “the appellant’s rights under Protocol 1, article 1 are violated by Section 72 of the 2003 Act”. (1)
The case concerns the Agricultural Holdings (Scotland) Act of 2003 which, among other things, provides tenant farmers who occupy land under “secure” tenancies with a right to buy their farm if and when it is ever sold. (2) For many years prior to 2003, no new “secure” tenancies had been created. and landowners, instead, made new tenants partners in Limited Partnerships (LPs). These LPs were granted the tenancy as “secure tenants” but by stipulating that the LP would be dissolved at a specified date, such a structure was effectively a device for circumventing the provisions of the law providing security to tenant farmers.
When the Bill was going through Parliament, there was anticipation that such tenants would be granted secure status. On 3 February 2003, a date that became known as the “night of the long knives”, around 200 tenants were served with notices of dissolution of the LP – effectively an eviction notice. The next day an amendment was tabled in Parliament to provide retrospective security of tenure to all tenants who had been served such notices. This became Section 72 of the Act.
One such tenant was the partnership of John and Andrew Riddell of Peaston Farm, East Lothian. They were served notice on 3 February 2003. Under Section 72, the Riddells applied to the Land Court in 2008 to be recognised as secure tenants and won their case in 2010. (3) During the land court hearing, Counsel for Alastair Salvesen, the landlord, made clear that he did not seek to invoke the ECHR.
Having lost the case, however, he appealed to the Inner house of the Court of Session and was successful in having breach of Convention rights as a new ground of appeal. The Court has ruled in Salvesen’s favour and found the Agricultural Holdings (Scotland) Act 2003 to be in breach and thus outwith legislative competence. A referral has been made to the Advocate General under Section 102 and the action is likely to move to the Supreme Court.
It was bound to happen eventually – the inevitable consequence of a “supreme” UK Parliament and a “subordinate” Scottish Parliament, a creature of statute and thus constrained by the terms of the Scotland Act. Section 3 of the Human Rights Act 1998 provides that where a court finds that any legislation from the UK Parliament is in breach of Convention rights, it may make a “declaration of incompatibility”. This obliges Westminster to do nothing at all to remedy the breach.
The Scotland Act, by comparison states boldly in Section 29 that an “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”. A breach of Convention rights is one example of an Act being outside competence. Thus, on the face of it, the Supreme Court or the Court of Session can strike down an Act of the Scottish Parliament. This happened for the first time in February 2012 (Cameron vs Procurator Fiscal ) when a provision of the Criminal Justice and Licensing Scotland) Act 2010 was struck down. The wider policy issues in relation to the Agricultural Holdings Act are discussed in my previous post.
This unbalanced treatment of laws passed by the UK and Scottish Parliament has always been one of the weaknesses of the devolution settlement. It has been evident, for example, that human rights has all too easily been invoked during the consideration of bills in the Scottish Parliament. A number of land reform statutes, for example, were watered down due to fears of a human rights challenge and the ultimate fate that may thus await any Act that was subsequently found to breach Convention rights. It has resulted in Scottish legal drafting being rather more cautious and timid that might have been the case with any equivalent statute in the UK Parliament.
This dramatic legal development comes at a sensitive time with a recent history of friction between the Scottish Government and the Supreme Court. It is right that human rights are observed and that laws are subject to judicial intervention. Unfortunately in this case, not enough was done early on to prevent landowners circumventing the law. Attempts to do so retrospectively have now proven unlawful.
It is now time for the Scottish Government to decide whose side it is on in the unequal class struggle between landlords and tenants.
(2) Secure tenants are those whose tenancy is governed by the Agricultural Holdings Act of 1991 and which is heritable and perpetual provided certain statutory obligations are met. Many tenanted farms have been held by the same family for well for over a century.
(3) Salvesen vs Riddell, Land Court ruling
UPDATE 4 OCTOBER 2012 Andrew Riddell died on 2 October 2012. STFA Press Release