These words were spoken by Angus Stewart when he appeared before the Napier Commission to give evidence as the very first witness on Tuesday 8 May 1883. He wished an assurance that, as a consequence of his evidence, he would not be evicted by his landlord.

A report by Robbie Dinwoodie in the Herald this morning claims that the Scottish Government is still to decide whether to appeal a Court of Session ruling (Salvesen v Riddell 2012) that Section 72 of the Agricultural Holdings (Scotland) is ultra vires and in breach of Article 1 of Protocol 1 of the European Convention on Human Rights. If the Scottish Parliament wishes to defend its own legislation, action needs to be taken otherwise it will be struck down in accordance with Lord Gill’s ruling.

I have blogged on this case before in these two posts here (on the politics of it) and here (on the legal case itself).

Meanwhile, I though it might be worth reproducing the opening page or so from Chapter 18 of The Poor Had No Lawyers in which the background to this case is explained.

“On 3 February 2003, around one hundred tenant farmers across Scotland received eviction notices ordering them to quit their farms. It was the culmination of a hectic few weeks of such notices being served. On a day of particularly severe winter weather, every effort was made to deliver the legal papers. Some farmers, forewarned of the move, battened up their letterboxes but to no avail. These tenants all leased land by means of limited partnership tenancies, a legal device which had been constructed by lawyers to prevent tenant farmers enjoying security of tenure. The draconian activity was provoked by the fact that the next day, the fourth, an amendment was to be tabled in the Scottish Parliament to a new agricultural holdings act that would give such tenants security of tenure and the right to buy their farms if they should ever come up for sale. The amendment was necessary to protect tenants against further eviction notices issued between that date and the passing of the act.

The Agricultural Holdings (Scotland) Act of 2003 is one of the unsung successes of the land reform programme introduced by the Scottish Parliament. It provides a number of important benefits to tenants including a right to buy when the farm is sold, rights to diversify land use, rights to assign the tenancy and improvements to compensation arrangements when a tenant leaves the farm. George Lyon MSP was one of its architects and, in the debate that passed the act, he had this to say:

For too long, tenant farmers have played the game with the deck stacked against them. Until now, the landlords have held all the aces in negotiations. The bill waters down dramatically the powers of landowners and their factors. Those powers must be watered down, because landowners have seriously abused the provisions of the Agricultural Holdings (Scotland) Act 1991. The partnership tenancies created by that act were nothing more than a legal device that left tenants with no security and at the mercy of landlords, who could kick them out at any point during the partnership agreement.

Write-down agreements robbed tenants of the value of their investments and, to rub salt into the wound, the tenants usually ended up paying rent on their own investments. Post-lease agreements were designed to allow landlords to dump their responsibility for repairs, renewals and provision of fixed equipment on tenants.

The use of Queen’s Counsel and expert witnesses in rent arbitration meant that the cost of arbitration for tenants was prohibitive. The most recent rent arbitration that was carried out on Arran, of which the minister might be aware, cost £12,000. If a landlord has to balance that cost over 60 farms, because the precedent is set when the rent goes up, the cost is affordable, but if an individual tenant on a three-year rent review has to spread the cost of £12,000 over three years, it is a no-brainer – they do not do it. I believe that the actions by landlords and factors that I have described drove a coach and horses through the 1991 act and left tenants powerless to fight for a fair and just deal.

I hope that the bill will end that abuse. It will shift the balance of power back to tenant farmers and will be fundamental in ensuring the future of the tenant farm sector. The creation of two new tenancy vehicles and the provisions allowing diversification should reinvigorate the tenanted sector and act as a further spur to rural development.” (1)

In no other land use is the struggle between the landless and the landed so marked and of such long standing as agriculture. People have always been farmers out of necessity and farming requires land. Any analysis of farming is likely therefore to shed much light on land relations.”

(1) The full transcript is available here in the Official Report 12 March 2003. George Lyon’s comments are at Col. 16386

 

10. April 2012 · Comments Off on Human Rights and Scottish legislation · Categories: Democracy, Farming, Land Reform, Land Rights, Legal affairs, Poor had no Lawyers

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.

(1) Salvesen vs Riddell [2012] CSIH 26

(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

10. April 2012 · Comments Off on Tenant Farming in Crisis · Categories: Democracy, Farming, Land Reform, Land Rights, Legal affairs, Poor had no Lawyers

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.