Is it legitimate to disturb property rights? Is it legitimate not to?
Dr Kirsteen Shields, New Statesman, 14 December 2015
The European Convention on Human Rights (ECHR) was built into the founding statute of the Scottish Parliament. It places Scottish laws in the broader mainstream of European jurisprudence. That concept is consequent on the transmission from the UK’s membership of the Council of Europe, which is much wider than the transcription of EU law into Scottish practice. The consequences of applying EU law into Scottish property law has been problematic. In this respect Article 1 on respecting rights and Article 8 on privacy have been the worst offenders. This issue loomed large in deliberations on the Land Reform Scotland Bill 2015 which followed debates on human rights when MSPs scrutinised the Community Empowerment (Scotland) Act 2015.
We can see that the Brexit debate has the potential to interfere with these agreed concepts of human rights. You only have to witness the attempts to curb immigration into the UK to find a fundamental challenge to the human rights that we have carefully built upon in Scotland. The work of the Scottish Parliament before 2016 applied ECHR and went further to explore the United Nations’ concept of universal human rights.
It had been understood for many years that Article 1 of ECHR balanced the principles of rights to enjoy private property while meeting the public interest. This is justiciable in civil law and could be costly to infringe. In the second John McEwen Memorial Lecture, in 1995, James Hunter presented his case to use ECHR. He believed that his list of land reform proposals could ‘be shown to be compatible with that injunction’.1 In the Scottish Parliament, during debates on rural land reform and agricultural holdings in 2003, these issues were also raised. But it was in the context of a late clause in the Agricultural Holdings (Scotland) Act passed in 2003 that ECHR compliance was tested and, ten years later, the landlord’s interests were upheld. This would become a major headache for the Scottish Government and RACCE committee in 2013.
The background to this debacle was summed up concisely by a STFA written submission to the Agricultural Holdings Remedial Order proposed by the Scottish Government following the loss in the Supreme Court of the Salvesen v Riddell case in 2013: Limited Partnership (LP) tenancies evolved during the 1970s as a means to circumvent the security provisions of 1991 traditional tenancies. By the 1990s they were, by and large, the only vehicles for letting land. LP tenancies were usually let for a specified period of time and if not extended they usually continued by tacit relocation (on a yearly basis). In most cases LP tenancies were regarded as long-term prospects. In early 2003 the Minister of the day, Ross Finnie, was presented with evidence that some landlords were dissolving their LP tenancies due to fears about right to buy legislation. In February the Executive decided to take preventative action and introduced measures to grant added protection to LP tenants. In an avoidance measure many landlords served notices to terminate LP tenancies the day before the lodging of the new legislative measure to the Rural Affairs Committee. At the time it was estimated that 200 notices were served on 3 February. What eventually emerged were Sections 72 and 73, which became incorporated into the 2003 Act. These provisions gave added protection to tenants in Limited Partnership tenancies and enabled those who were given notice during the ‘relevant’ period to claim full security of tenure providing it could be shown the intention behind the notice to quit was to deprive the tenants of any rights accruing to them to them from the new Act.2
In 2014, SPICe summarised the court action and its effect:
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 Scottish Government identified a number of groups affected by the defective sections of the 2003 Act, including that a tenant may now have a full 1991 tenancy; or that the landlord may have sold either to the tenant exercising a pre-emptive right to buy, or to a new landlord. The Scottish Government consultation sets out the different groups that could be identified as being affected by the defect in its consultation on the remedial order.3
RACCE took evidence ahead of the passage of the Remedial Order hearing that the number of tenancies affected had been reduced to seven cases. Of all the parties identified a very few indeed were expected to suffer. Of course, tenants as well as landlords would be very likely to seek compensation for the actions of the Parliament in 2003 – in which all but the Tories had supported the Scottish Executive position.4 The Lord Advocate’s appeal to the Court of Session on the ECHR point was rejected by the court due the ‘inflamed language’ of Alan Wilson MSP, the deputy minister. This was prompted by the heightened atmosphere of tension among limited partnership tenants by the serving of notices by their landlords to end the partnership. At Stage 2 of the Agricultural Holdings (Scotland) Bill the Scottish Executive had introduced the amendment to enhance the security of these tenants for the period after the introduction of the bill in September 2002 until February 2003.
Human rights tested, and universal rights invoked
In 2003, Ross Finnie MSP, the then Cabinet Secretary for the Environment, was bombarded by news that hundreds of limited partnership tenants had received notices to quit. Finnie believed his limited proposal for security was ECHR compliant, as did the parliament’s lawyers who allowed the proposed amendments to go forward. Ten years later this move had unravelled spectacularly.
Alastair Salvesen, one of the richest businessmen in Scotland, was determined to retrieve vacant possession of Peaston Farm near Ormiston in East Lothian from his tenant Andrew Riddell whose family had farmed there to a very high standard since 1902. Mr Salvesen had purchased the estate in 1998 and had other ideas for the limited partnership tenancy that Mr Riddell and his brother enjoyed. The Scottish Government inherited the implications of the decision of its predecessors. Ross Finnie’s attempt to protect this group of limited partnership tenants had Labour, Lib Dem and SNP support but was struck down in the landlord’s favour in the Court of Session in 2012. This raises the key question about the means whereby a substantial majority of MSPs can offer protection to tenants from eviction by voting in the national parliament to do this, believing it to be in the public interest. The interpretation of Article 1 Protocol 1 and Article 8 of ECHR by Lord Gill to uphold the landlord’s rights lays severe tests for any future laws that might be proposed (eg to seek to give secure tenancies held under the 1991 Act as a right to buy their farms). It had been widely debated in 2003 having been common in other EU states in previous times.
The basedrones blog on 2 April 2014 commented on the Salvesen v Riddell remedial proposals constructed by the Scottish Government to correct an ECHR breach that had been handed down by the UK Supreme Court. After a summary of the legalese in Richard Lochhead’s statement of intent, it went on:
Good luck to the civil servants drafting the plain English guidance. If I was to have a go myself, I would probably opt for, ‘general partners who thought they were getting an upgrade because a landowner tried to end a farming limited partnership between 16 September 2002 and 30 June 2003 are now treated roughly the same as any tenants with a landowner that acted after 30 June 2003.’ One final point. In the comments to a post on this topic last year, I supposed this might affect a hundred or so cases. The Scottish Government today suggests the figure is as low as 25. Whilst that may be a low number, and this may seem like an awfully complicated way to deal with things, if human rights mean anything the numbers and the complexity matter not a jot. A society that cares about human rights ought to do all it can to ensure those rights are respected in all circumstances.5
This last remark by the blogger, Malcolm Combe, then a law lecturer in Aberdeen University, lies at the heart of the conundrum legislators must face. Firstly, how does the Scottish Parliament’s responsibility to apply ECHR principles in Scottish laws protect its citizens? Secondly, what impact on such situations can the UN Convention on Economic, Social and Cultural Rights (UNCESCR) make to our laws which the parliament is also obliged to apply? This latter convention had been adopted into UK law in 1976. Being UK international obligations, the Scotland Act 1998 included its observance and implementation. But, unlike ECHR, the UNCESCR is not directly justiciable.
Mindful of the difficulties ECHR and other constraints, in August 2012 the Scottish Government gave the LRRG a radical remit which could collide with ECHR. In a key section of its final report entitled The Land of Scotland and the Common Good, the Review Group linked these ideas to that of the public good. They argued that their remit encouraged a detailed development of ideas for a comprehensive land reform programme because:
The term 'common good' describes a comprehensive and complex concept which brings into its embrace questions of social justice, human rights, democracy, citizenship, stewardship and economic development. These are all terms which have expansive, ambitious horizons. Yet each of them can be interpreted in a narrow way which limits its value. The Review Group considers that bringing them together under the common good helps to point towards outcomes that are healthy, rounded and robust.6
The LRRG explained that social justice was centred on fairness and equality values that were embedded in their remit. They went on:
Human rights have traditionally been a prominent part of the land reform discourse, with the UN Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights (Protocol 1, Article 1) providing a framework which seeks to balance the right of the population to an adequate standard of living, with the right of the individual to the peaceful enjoyment of his or her possessions. A respect for democracy (and democratic accountability) is also a key component of the common good, as is the concept of citizenship – active citizens pursuing not just their own ambitions, but also goals that are for the good of society as a whole.7
During the period of the LRRG deliberations from August 2012 till May 2014, which was followed by the Scottish Government consultation and publication of the Land Reform (Scotland) Bill 2015, the ECHR breach played out sensationally in the courts, tragically at Peaston Farm, and vocally outside the Scottish Parliament. It was addressed thoughtfully in the RACCE committee which processed and quizzed ministers on the remedial order and encouraged the incorporation of international examples of human rights into the Community Empowerment (Scotland) Bill and Land Reform (Scotland) Bill 2015.
In my role as convener of RACCE I continued the well-established practice of encouraging wide ranging participation from all parties, even though the committee’s work programme was often fashioned round the time needed to process government bills. Members agreed to business that led us into greater understanding of key aspects of the bill’s contents through preparatory work and visits. The pressures of time always left us wanting to get out more to meet the people we were trying to serve. But, in the case of human rights issues, the urgent business came at us through events, dear boy, events. The Supreme Court ruling on Salvesen v Riddell in April 2012 and the death of Andrew Riddell, by his own hand, in October 2012 followed his final harvest. Each was greeted with shock and sadness in parliament and across the farming industry. Calls for an equitable solution were mixed with anger at the loss of a progressive farmer and a well-liked man. The case underlined the strains created by complex landlord and tenant laws and their long history of conflict and entrenchment of the landlord interests by the extensive and costly use, often at great length, of the civil courts.
Cabinet Secretary Richard Lochhead MSP, soon to become the longest serving minister in one portfolio, longer even than his predecessor Ross Finnie, had extensive experience of agricultural matters. He generated new urgency by personally chairing the Agricultural Holdings Legislative Review Group to speed up solutions that might ensure tenant farmers were better protected and to encourage landlords to let more land. Yet the need for a remedial order to meet the UK Supreme Court’s judgement would dog Richard’s last years of the 2011–16 parliament.
David Balharry, from the Agriculture Directorate, was the civil servant tasked with producing a form of words to identify those affected, propose changes to the Agriculture Holdings (Scotland) Act 2003 and set out ways for limited partnership tenants and their landlords to reach compensation agreements without any Scottish Government liability to particular sums of money. The groups likely to be affected were surveyed and the numbers reduced to seven tenants who were directly caught by the ruling. In the event, there was little room for manoeuvre for RACCE or the Scottish Government. An order was agreed, laid before Parliament, and conveyed to the Supreme Court for its approval.
Concerted action to assert human rights
The Scottish Human Rights Commission (SHRC) had been established by the Scottish Parliament in 2006. It has UN accreditation and was led from 2007 till 2016 by Professor Alan Miller. He told Holyrood Magazine in 2016 that his appointment
came at a when any discussion around human rights seemed to entangled with criminal justice
The decision to release convicted Lockerbie bomber Abdelbaset al-Megrahi on compassionate grounds in 2009 – one that the commission supported very publicly – was perhaps the most emphatic example of that. Miller went on:
As chair of the European Network [of National Human Rights Institutions] and vice chair of the global network, I am constantly in circulation and Scotland’s stock rose enormously around the world as a result of that decision.8
Happily, a whole new area of human rights activity opened with huge international bearing when community empowerment and land reform were on the table. We had the great pleasure to question Alan Miller and discuss many aspects of human rights with him. From this there emerged a cluster of concerns to embed human rights in land reform issues. These became talking points following the LRRG final report. Lobbying by human rights activists prompted Mike Russell MSP to introduce an amendment to the Community Empowerment (Scotland) Bill when RACCE was asked by the Scottish Government’s business manager to shepherd Part 4 of the bill through parliament. Decisions under Parts 2, 3 or 3A of the 2003 act would require ministers to have regard to the International Covenant on Economic, Social and Cultural Rights argued Mr Russell. He explained:
If we fail to recognise those wider rights and are mindful only of, for example, the European Convention on Human Rights, we are promoting – always promoting – the concept of individual rights and never promoting the concept of community rights. It is important, at least at the base of decision making by ministers, that they should be mindful of those wider obligations.
In the area of land reform, it is also important that they are mindful of those wider obligations, because, as we can see in the developing debate over land reform, the issue will, at times, become a debate between the rights and expectations of an individual and the rights and expectations of a community. Ministers have to be able at least to consider the wider obligations that the parliament and the government owe to a community.
The Minister, Dr Aileen McLeod MSP, agreed that this was a useful addition to guide ministers. Only Alex Fergusson, the Tory MSP, abstained at the vote to reserve his position for Stage 3 debates on the bill.9
Arguments aplenty were taking place about the right to buy, whether by communities, tenant farmers or crofters. Regarding the latter, when the UK Crofting Reform (Scotland) Act 1976 gave crofters the right to buy at 15 times their annual rental, no application of ECHR was mentioned. No attempts were made to stop the measure which had cross-party support. No appeals were made to the UNCESCR although it was ratified that year in UK law. Perhaps this shows a mindset among law makers at the time and landowners, then and now, that while crofting was a burden to them, tenant farming was, on the other hand, a major source of income.
On 25 March 2015, RACCE was reviewing the Agricultural Holdings Legislative Review Group final report published that January. We quizzed a panel of witnesses who gave evidence on the report that ran to 49 detailed recommendations. Whether these could be legislated for in the current parliamentary session was a moot point. The fragility of a rural business consensus was exposed when the SLaE representative mentioned ECHR. Many committee members raised eyebrows on the topic of succession and conversion of leases on which SLaE considered the review groups recommendations to be ‘not appropriately balanced and represent a substantial erosion of the landlord’s rights’. This allegation was led by Stuart Young, factor of Dunecht Estates, and chair of SLaE Agricultural Holdings Strategy Group. Most RACCE members saw this as another threat to the hard-won agreement. Mr Young’s explained:
We have taken opinion from senior counsel, and counsel’s firm view is that the proposals represent a breach of the European Convention on Human Rights and will ultimately leave the government with the prospect of a hefty bill of circa £600 million for paying compensation to landlords.
That is pretty blunt and fundamental in terms of the position of Scottish Land & Estates and how we see things. Clearly, we do not want to go into any new legislation that would create a period of conflict and court action that was a repeat of the Salvesen v Riddell case. We should see whether there is a better way of going forward.
Mike Russell immediately challenged the SLaE threat of ‘the big stick’ which brandished ECHR as a matter of opinion suggesting there might be other opinions. He went on:
A different perspective could be taken, which is that the freedom to assign has gradually been eroded since the 1948 legislation, but the pendulum is beginning to swing back to a more reasonable set of arrangements by which assignations should take place in the best interests of the tenant and the landlord, provided that that will lead to the continuing safe and secure operation of the farming business.
Mike Russell concluded that Mr Young’s remarks were ‘not a helpful contribution to the debate’. Stuart Young replied that it would be irresponsible of SLaE to have identified the difficulty ‘but not brought it to the attention of the Government and the committee’.10 Scroll back 13 years to the 12 weeks when the Land Reform Scotland Act 2003 was being consulted on. The P&J reported that the same Stuart Young, ‘a leading north-east estate factor’, had said ‘the pre-emptive right to buy was likely to kill the letting market dead’.11 The trajectory of SLaE strategy is plain to see. Along with RICS they sought to threaten the Scottish Parliament ahead of its law making. Mr Young claimed in the same piece that this pre-emptive RTB ‘threatens to destroy the agreement reached by the SLF and NFU Scotland on new agricultural tenancies.’
In 2002, Hamish MacDonnell reported in The Scotsman that RICS was estimating that ‘nearly £500m will be wiped off the value of farm land’. He noted that the SNP, which was campaigning for the bill to be tougher, were pointing out that 50 tenant farmers had already been served with eviction notices by landlords trying to dodge the provisions of the bill. This was seen by MacDonnell as
an escalation in the war of words over the bill that was supposed to be uncontentious, but which had now become the latest battleground over land ownership.
The tactics of landowners and their agents have become all too familiar. First you overplay the rhetoric to assert your self-proclaimed property rights and then apply the big stick to beat any hard-won concession that might be agreed with their ‘partners’ in rural businesses. Certainly, the Agriculture Holdings (Scotland) Act 2003 had not been the last word on tenants’ rights. The late amendments to the bill to try to protect limited partnership tenants exploded by the end of the decade.
The SNP took over the reins as a minority government in May 2007 and the P&J reported on 20 October that, according to land agents Savills,
Farmland prices continue on an upward path – values are now 50% above peaks in the 1990s.
The paper calculated that the reasons for 50% of farm sales were either death, retirement or other domestic reasons. It expected farmer buyers to be the majority of purchasers while so-called lifestyle farmers could account for the balance of farm and land purchases. As RACCE members well knew, investment in land and farms continued to produce the best return, as the LRRG were to reference in 2014.
Fast forward to an important footnote to the ‘£600m compensation claim’ raised by Stuart Young in April 2015 at the RACCE hearing. This was contained in the SLaE supplementary written submission at Stage 1 of the Land Reform Scotland Bill later that year which laid out the legal advice that argued the ECHR implications of widening succession to farm tenancies. In that advice it referenced possible compensation for landlords but offered no mention as to the potential sum involved. When David Johnstone, the recently elected chair of SLaE, represented the landowners’ body at the Stage 1 hearing on 16 September 2015. He did not mention compensation or amounts of compensation in his evidence.12
International human rights to the fore
NGOs and the SHRC were formulating a much wider approach to human rights over land reform along with sympathetic MSPs. Their focus would go beyond individual property rights and towards community rights, which had become a durable part of international law. They sought for land reform in Scotland to use that wider armoury of argument to boost its radical intent.
Under the auspices of the United Nations Organisation various declarations have been adopted by the international community, such as UNCESCR. Another key text was the UN Food & Agriculture Organisation’s Voluntary Guidelines on Responsible Governance of Tenure of Land, Forests and Fisheries (VGRGTLFF). Each was adopted in response to bad practice and increased pressure on land across the globe. The eradication of hunger and poverty by promoting sustainable development was required by the recognition of the centrality of secure tenure rights. This first crystallised in a Developing World focus. But Scotland’s concentrated land ownership pattern and inequalities of opportunity to access our most basic natural resources made these measures highly relevant in one of the oldest nations in Europe. Enhancing human rights would be brought to bear in the cause of transparency of ownership in the Land Reform Bill.
References
1 Towards a Land Reform Agenda for a Scottish Parliament, Dingwall, 22 September 1995
2 See timeline in Annex
3 http://www.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_14-52.pdf
5 basedrones blog
6 LRRG, The Land of Scotland and the Common Good
7 ibid.
8 Holyrood Magazine, 2016
9 RACCE OR, 11 March 2015
10 RACCE OR, 25 March 2015
11 P&J, 17 April 2002
12 RACCE OR, 16 September 2015
left: 2013 Helmsdale Human Rights to Land Campaign. right: In late 2015 I received the petitions signed by thousands on behalf of Andrew Stoddart, here pictured after the demo outside Parliament with Lesley Riddoch two of Andrew's relations Jim Fullarton and Peter Cheyne.