Tenant farmers, factors and landlords
It’s the land. It is our wisdom. It’s the land. It shines us through. It’s the land. It feeds our children. It’s the land. You cannot own the land. The land owns you.
Chief Seattle 1855, adapted by Dougie Maclean, Solid Ground © Limetree Music
Control of agricultural land has, for centuries, been heavily weighted in favour of landowners and against the rights of tenant farmers. From the Agricultural Holdings (Scotland) Act of 1883 to the present day, the policy of owners is clear. These lairds sought to retain as much control over their land as possible. That is a constant theme through various crises and acts of Parliament. It has had a major impact on the nation’s food producers and, in my view, was as live an issue in 2016 as in the centuries before.
In 2011, most of my colleagues on the Rural Affairs, Climate Change and Environment committee (RACCE) wanted to see radical changes to stabilise farming in Scotland. But without a widespread right to buy – and a powerful dose of human rights law – we wouldn’t see the overbearing behaviour from the landed proprietors and their agents curtailed any time soon. It has a long history and tradition stretching back centuries which has proved difficult to uproot.
In the 1880s, the depression of agricultural prices bit deeply on farming at home. The import of cheap grain, mutton and beef from the British Empire, Argentina and the USA was the main cause. Tenants were forced to accept unrealistic rent rises to retain their holdings or lose their considerable investment and move on. Gladstone’s Liberal government set a bare minimum of compensation in the 1883 Act in a modest attempt to help crofters survive. Further, lengthy campaigns followed the legislation in the hopes of improving the tenant farmers’ and farm servants’ lot. Through all the economic ups and downs, world wars and depressions, the need for vigilance against landlord power was still evident.
I see the potential for something similar happening amidst the UK Brexit boorach. Free markets outwith European Union safeguards could wreck high quality British farming and crofting. Unacceptable standards of feedstuffs and intensively reared and chemically treated meat could truly threaten the repopulation Scotland.
The only counter to industrialised farming is family farming, backed by fair prices that reflect production costs and a safety net of a tailored support scheme as practiced by the EU for its least favoured areas. Crofting and a heartening rise of organic farms and farm shops require special support on the grounds of biodiversity and healthy food production. Our overweight, under exercising citizenry need more options to shop locally.
However, figures supplied in 2013 by the Scottish Government to the LRRG show that farms were being amalgamated, sometimes managed ‘in hand’, and that tenant farming was in sharp decline. Data for 1913 show 5,648 owner run farms and 71,740 tenanted holdings. By 1980 the respective numbers were 17,139 owned and 14,274 tenanted.1
Between 1990 and 2013, farm ownership rose from 27,949 to 36,670 while tenancies fell from 21,740 to 14,937. In terms of acreage over the same period, the totals owned and rented changed from a ratio of approximately 3:2 to 4:1. Reasons for this include the demand for increased output which led to amalgamations. Considerable, compared to rental income, public subsidies encouraged landowners to take some tenancies in hand. Landowners also became increasingly reluctant to create new tenancies if the security of tenants’ rights, gained in 1949 and confirmed in 1991, was likely to be further enhanced.
Less secure tenancy vehicles such as limited partnerships also became fashionable in the 1980s. This galvanised the Scottish Tenant Farmers Action Group. 2 Organised in 2001, it lobbied hard during the debates around Agriculture Holdings (Scotland) Bill as it passed through Holyrood in tandem with the Land Reform (Scotland Act) 2003. The counterblast was to demand more land for tenant farming and encourage new entrants.
Out of the Bill’s passage the Action Group claimed some gains from the Scottish Executive’s initial proposals. These included a range of technical measures to help maintain tenants’ incomes and compensation. But their big ask of the right to buy (RTB) in a research paper, The Case for a Right to Buy, did not come to fruition despite considerable parliamentary debate and support.
As the principal opposition party, the SNP MSPs made a strong case in Bill’s committee to support the RTB for secure tenant farmers. The Stage 1 Report noted the committee voted by six to three that, in Fergus Ewing’s words, it was sympathetic to an absolute right to buy for secure tenants under the 1991 Act but reserves judgement on this issue pending amendments to be brought forward by the Scottish Executive at Stage 2.
An amendment (No. 134) in Stage 2 was put forward by Ewing but the Coalition Government decided it was too contentious – ECHR could be breached as a result of the amendment. The result of the committee vote was seven (4 Labour, 2 Conservative and 1 Lib Dem) against and four (3 SNP and 1 Lib Dem) for with no abstentions. 3
Because the committee vote was decisive the SNP members declined to bring it back at Stage 3. Instead they focused on parrying the efforts of landlords who were trying to turf out limited partnership tenants. Limited partnership tenants would become entitled to secure tenancies in the Bill after the Scottish Executive proposed its own 11th hour amendments, later known as Sections 72 and 73. This left a legacy of ‘what ifs’ especially for general partners of limited partnership tenancies.
After the bill was passed in 2003, the Scottish Tenant Farmers Action Group then became a permanent lobbying body as the Scottish Tenant Farmers Association (STFA). It joined the newly formed industry-led round table, the Tenant Farming Forum (TFF), alongside representatives of Scottish Land and Estates (SLaE), the National Farmers Union of Scotland (NFUS) and the Royal Institute of Chartered Surveyors (RICS). The TFF commenced to work over the next six years seeking some agreed tenant farming improvements.
Richard Lochhead and I, as the shadow spokesperson and his deputy, attended a briefing in Parliament with the TFF early in 2007. We heard first-hand of the struggle to find any common ground: it had been acting like a wartime naval convoy. The pace was that of the slowest ship, namely SLaE. Eventually, during the 2007 to 2011 minority Scottish Government, the TFF proposed some minor and non-contested changes in tenancy law and succession.
In the early days of the majority SNP Government (2011–2016) these were enacted in the Agricultural Holdings (Amendment) (Scotland) Act 2012 which was scrutinised by RACCE. The majority of the committee sought a wider range of possible successors to tenancies but agreed to get those already proposed onto the statute book. The government’s frustration with the slow progress in the TFF led it to form the Agricultural Holdings Legislation Review Group (AHLRG) in November 2013. This new body would be led by Richard Lochhead, the Cabinet Secretary, himself, instead of being an industry-only creature.
Succession law reform – long sought, still to be achieved
One of the bastions of Scotland’s concentrated pattern of land ownership was, and is, the hereditary principle of primogeniture. This practice ensured landed property including farms would pass to the eldest male successor on the death of the owner, unless previous provision had been made by the family. It maintained the size and extent of many holdings in very few hands.
In 1951, as the removal of feudal dues were being discussed, the Mackintosh Commission recommended an end to the legal distinctions between the sexes in succession law. The Succession (Scotland) Act was passed by Westminster in 1964 but signally failed to redress the heritable (land) and moveable (houses and other possessions) division of property. The Scottish Law Commission repeatedly reported in 1986 and 1990 to the government recommending changes. But the longstanding opposition of the Scottish Landowners Federation (SLF) and NFUS had stymied change under successive governments before devolution. So, with the advent of the Scottish Parliament, it was hoped that reform would be proposed. Yet the Scottish Executive failed to do so.
In June 2006 I launched a consultation paper as a possible Member’s Bill on Succession Law Reform. I cited favourable examples in several European countries and in North America. As a result, several law firms contacted me with a range of caveats to my Bill, while land reform campaigners saw the abolition of the distinction between heritable and moveable property as a key aim to modernise which would hopefully prise open land ownership in what was supposed to be post-feudal Scotland. But as the final months of the session closed in, and time started to run out to launch a Bill proposal, I had hopes that it might be launched in the following parliamentary term after the next round of proposals by the Scottish Law Commission, which was set to report to government in 2009.
Ministers of the minority SNP Government 2007–2011 were reliant on Tory votes to pass the budget. Yet a wider array of parties could support succession law reform if it was prioritised. So, I was less than impressed with the ministerial answer to my parliamentary question.
Rob Gibson (Highlands and Islands) (SNP): To ask the Scottish Government what plans it has to legislate in relation to the Scottish Law Commission's ‘Report on Succession’, published in April 2009.
The Minister for Community Safety (Fergus Ewing): The ‘Report on Succession’ recommends significant reforms to the law. I provided an initial response in July. Subsequently, in answer to a parliamentary question from Ian McKee, I confirmed that I had also met the commission's chairman. The Scottish Government is now having a dialogue with and consulting stakeholders to inform the way forward. Plans for legislation will be finalised in the light of that work, taking account of all relevant perspectives.
Gibson: Succession was last legislated on in the 1960s, and indeed the Scottish Law Commission's 1990 review was not acted on in the Parliament's first eight years. I am delighted with the indicated timetable, which I presume means that an answer will emerge only after 2011. However, it is important, that as far as equality in family law is concerned, the interpretation of heritable property succession rights is legislated on as early as possible.
Ewing: Rob Gibson is entirely correct to say that the current law rests on the Succession (Scotland) Act 1964, which, although it has served Scotland well, now needs considerable updating. We hope to take that forward through consultation, and in that regard I am delighted that the Justice Committee has responded positively to my suggestion of meeting the commission informally to discuss the report. Given the complexity of the issues, not least the recommendation to abolish the distinction between heritable and movable property –something, indeed, that Rob Gibson raised in his member's bill in 2006 – the widest consultation should be carried out to ensure that we maintain a consensual approach. With that in mind, it is more likely than not that legislation will emerge only after the end of this parliamentary session. 4
And yet years passed. Till this time, late in Session 4 of the Scottish Parliament, it was agreed that the Subordinate Legislation Committee should be transformed into the Delegated Powers and Legislative Reform Committee. That way primary legislation, such as Succession Law Reform, could fall within its remit. The Scottish Government consultation on succession law was launched in the Spring of 2015. 5 Given the complexity of the proposals which could have multiple effects on successors, the hope for early abolition of heritable property rights has not yet emerged. The aim was to move to a Bill after the 2016 elections. However, at the time of writing that is still not yet on the horizon. 6
Tenant farming – erosion and disquiet or excellent relationships?
From the outset of the RACCE committee work programme in 2011 we reviewed the plight of the tenant farmer. Members received informal briefings from the STFA and others. Officially the TFF, the industry-led body, had been meandering through a maze of seemingly intractable sessions for six years.
At the root of this delay, it appeared to MSPs that there was an unbridgeable gap between the tenants’ aspirations and the views held by landowners and their agents. By 2011, the SNP Government decided that the problems for such a key group of innovative farmers had to be a land reform priority.
The Agricultural Holdings (Amendment) (Scotland) Bill, introduced to Parliament on 31st October 2011, appointed RACCE as the lead committee. Such a modest proposal referred to a slight extension of possible successors as tenants, the conduct of rent reviews and ruled out VAT costs on variation of tenancies. This was the sum total of seven years’ work by the TFF. Primary legislation was required to pass some proposals already agreed by consensus in the TFF that could not be included in the Public Service Reform (Scotland) Act 2010. These had been scrutinised by RAE, the predecessor committee to RACCE, and pinpointed the fragility of consensus in the TFF by the paucity of subjects agreed to.
Any talk of extending the range of succession beyond grandchildren to nephews and nieces exposed this fragility. It drew a familiar view from landowners. One TFF member from RICS, Richard Blake stated:
The bill clarifies that succession by grandchildren is now permitted and we do not have any particular objection to that. If, as a matter of principle, we are looking at extending the definition of ‘near relative’ beyond direct descendants, it could be argued that that takes away from landlords more rights that they have under existing legislation. 7
However, evidence presented by the TFF to RACCE sought to portray optimism in the face of awkward evidence to the contrary. They were concerned that a transition period between the death of a tenant and a successor prompted questions about the retrospective nature of the clause. After questioning the Cabinet Secretary, Richard Lochhead MSP, Conservative and Liberal Democrat members of the committee were, nevertheless, satisfied with the Government response.
Of the 16 submissions to the RACCE committee’s call for evidence three were anonymous.
The issue of land agents was raised:
The recent tactics of some agents have left tenants in shock and can only be described as bullying behaviour which has had a very negative effect on landlord/tenant relations… The actions of a few land agents who operate nationwide (and are gradually replacing resident factors), combined with the actions of some legal advisors over the last decade, have damaged landlord and tenant relations to such an extent that it is difficult to see good relationships ever being restored. 8
The NFUS told the committee that the way in which land agents act on behalf of some landlords in discussions with tenants could give rise to tension and conflict within negotiations. It went on to recommend that a code of practice should be established and enforced to better govern the role of land agents. (For a worrying example of the work of land agents see below in connection with the Isle of Bute.)
In response RICS confirmed that its members had ‘rigorous guidance’ on how agents should behave and conduct themselves but added that this did not apply to all land agents, as not all agents were members of RICS. RICS confirmed that it had produced a guidance note on a code of conduct for its members and that this would be revisited within the TFF.
During his evidence to the committee, Lochhead stated that he did not feel the development of a code of practice in this area was the responsibility of Government, but was supportive of the industry itself developing a code:
A code of practice to address some of the issues with land agents would be a good thing, as long as there is a way in which the professional organisations of which the agents are members can enforce it internally. 9
In its First Stage Report on the Bill the committee supported the development of that code of practice which would ensure a greater consistency of practice and behaviour amongst those providing land agent services. However, it was essential that any such code be applicable to all land agents operating in Scotland, whether acting on behalf of landlords or tenants, and irrespective of their membership of RICS, and that the code had some ‘teeth’ to ensure it could be appropriately enforced.
And, on land agents’ conduct, the committee recommended that the Scottish Government closely monitor the development of a code within the industry, via the TFF, to ensure that any code is fit for purpose. This was to prove a major irritant in subsequent years as the land reform consultation unfolded and instances of strained tenant and landlord relations came to the surface.
Another anonymous submission to RACCE expressed fears about speaking out during tenant and landlord disputes:
It is difficult to find tenants willing to represent tenants’ interests, not just because of continual daily hands-on farming commitments which prevents most tenants taking time off from their farming duties, but also because of the fear that any tenant who dares to stick his or her head above the parapet will draw unwelcome interest from land agents, factors, and landlords. It is clear that tenants who represent other tenants’ interests by sitting on the STFA board or the NFUS’s Tenants Working Group are often the ones who are singled out and pursued to the land court by landlords who clearly want to put tenants off the idea of taking part in any debate regarding the tenanted sector. For a similar reason [sic] it is hard to persuade tenants in difficult and unpleasant situations to allow their problems to become public, as they rightly see that doing so will only make their situation worse. If government is to encourage a debate over the tenanted sector, consideration should be given to these difficulties which will prevent many tenants from making a valuable contribution to this debate.10
To break the ice, the new AHLRG would report back early in 2014.
Scottish Government research, conducted by IPSOS MORI in 2014, also took the temperature of tenant/landlord relations. This led to the oft-quoted figure of 82% of tenant farmers being happy with their landlords. 11
This figure was repeated time and again by Tory MSPs and landed interests to counter and limit the importance of evidence of tenant/landlord flashpoints which we heard of in various submissions to the consultations and the eventual bill proposal in 2015.
The seven years’ snail’s pace in the TFF suggested that major problems were affecting many more than the 18% who were less than happy with their tenancy arrangements. Even modest proposals by the ministerial-led AHLRG had to be wrung out ahead of the full land reform bill. These revealed the underlying demands of a significant minority of tenants who were living with smouldering concerns that prompted some, even if it was costly, to try and purchase their farms if they could.
Meanwhile, MSPs were assessing ministerial proposals to resolve the historic consequences of the Scottish limited partnership tenancy crisis. This was a hangover from clauses offering security of tenure to a range of limited partnerships in the 2003 Act. The Salvesen v Riddell judgement would spawn a high-profile campaign on behalf of affected tenants that petitioned Holyrood for redress. As a committee, RACCE members had our fill of tenant farming issues from the outset. 12
Bute – a tale of two surveys
A prime example of tenant farmer and landlord conflict was gleaned by RACCE members even before the modest Agricultural Amendment (Scotland) Bill was given unanimous approval in Parliament on 7 June 2012. On 28 and 29 May of that same year, a committee fact-finding visit to the Isle of Bute saw three MSPs, including myself, and their committee clerks walk unawares into a heated controversy.
The planned itinerary of day one of our trip began with presentations and visits hosted by the Mount Stuart Estate Trust staff and a senior CKD Galbraith factor, Christopher Addison Scott. Later that evening tenant farmers from Bute, Islay and Arran accompanied by Angus McCall, STFA chairman, met with us at our hotel in Rothesay. On the morning of the 29, Mr McCall and John Dickson, the NFUS Bute chair, conducted a tour examining the tenant farmers’ points of view .
The surprise revealed to us on our arrival at Mount Stuart was an NFUS survey of its Bute members who composed 98% of the island’s farmers. Thirty-four of Bute’s 52 farmers had responded including 85% of this island’s dairy farmers, a key sector which was under strain. The results were highly critical of the estate management showing that 80% of the respondents had poor to bad views of their relationship with their landlord.
The survey had been prepared for us. Margaret McDougall, Dennis Robertson and I expected to interrogate its findings on our visit. Instead we found that the estate had been given copies before our arrival at Mount Stuart where the factors who greeted us immediately counter attacked. The tenants were incensed; they did not know the results as the NFUS HQ at Ingleston had passed the findings to the landlord’s agents. 13
A fortnight later The Scottish Farmer presented the controversy as ‘A tale of two surveys! Landlords – all is well; Tenants – crisis of confidence’. Its leading article headed ‘The need to know!’ noted that land reform matters continued to dominate the news and letter pages. While some saw constant publicity of the issues as injecting ‘too much emotion into the debate’, others saw publicity as the ‘only vehicle available to get their point across’. It went on to claim that many tenants felt let down by the system’ so ‘publicity is their most potent weapon’. 14
Referring to the Bute spat, The Scottish Farmer claimed:
The lack of publicity given to a recent tenants’ survey on Bute by NFU Scotland has angered some of the island’s tenant farmers and union members. What has angered them even more, however, is the apparent leaking of the results to their landlord’s representatives before a crucial meeting [with MSPs] and even before tenants themselves know the contents. If true, this is unacceptable! 15
We reported back to our colleagues on our return to the Scottish Parliament and the committee agreed to keep a close eye on any developments. Some days afterwards, an extremely frosty exchange occurred at the Royal Highland Show when I met Luke Borwick – an Ayrshire landowner and, at that time, chairman of SLaE – along with James Galbraith – the principal of CKD Galbraith who provided the Bute Estate factors. My parting remarks to them were that the public interest would be much more prominent in forthcoming debates in Holyrood. No, I was not seeking land nationalisation as Mr Borwick angrily accused, but much more diverse ownership of Scottish land.
The letter pages of The Scottish Farmer reverberated with further heated comments and then, on 14 July, Scotland on Sunday ran a story ‘MSP hits out over Bute’s “absentee landlord” Johnny Crichton-Stuart.’
Journalist Marc Horne retold the tenants’ story and my response to it. On a wider tack, he quoted the plight of Aidan Canavan, a secondary school teacher who had contacted me when the MSPs visited the island. He described, to me, how his partner had received a ‘golden hello’ to work as a doctor in a practice on the island but that they couldn’t purchase a house site. Having moved from Glasgow, they did not wish to dwell in Rothesay. Mr Canavan told Marc Horne that
‘their dream of buying a home in the countryside had been thwarted’.
He went on:
There are a number of derelict houses on the island which have been left to crumble over a number of years. We would be happy to buy one and invest in it and the island, but we can’t because we are being impeded every step of the way by the estate.
The feudal nature of Bute was made plain to us by the estate’s opposition to installing wind turbines which could reduce the considerable electricity bills incurred by dairy farmers. Derelict houses which we had spotted on our rounds, some empty for a decade, were as clear an indication as possible that Mount Stuart would only tolerate tenant farmers’ housing in their demesne, not other rural residents. 16
Following the Scotland on Sunday article, James Galbraith challenged me by letter to corroborate points he had discussed by an email reply he claimed to have received from Marc Horne prior to the substantive article appearing. These points, he claimed, did not match my remarks printed in the paper itself. He then made an accusation that I had told Mr Horne that ‘individuals representing CKD Galbraith had acted, on occasion, “with a degree of menace”’.
On that matter Mr Horne quoted one tenant farmer who spoke on condition of anonymity:
I’ve been warned that my future on the island could be affected if I spoke out. But it is no exaggeration to say that people on the island are living in fear. 16
As CKD Galbraith provided the factoring service to Bute estate, James Galbraith was keen to link my alleged remarks to be a direct accusation against his firm. He concluded his initial letter:
CKD Galbraith is a professional business which provides a livelihood to over 200 partners and employees and our reputation is critical to our continued ability to do so. We cannot tolerate any parties making unsubstantiated slurs against us… As you spoke to Marc Horne in your capacity as RACCE chairman [sic] I am circulating copies of this letter to all committee members. 17
I responded on 13 August on return from my annual leave:
You say your firm takes seriously the remarks made in Scotland on Sunday of 14 July concerning Bute Estate. I take very seriously the views of the Bute tenants which you dismissed as ‘a measure of dissatisfaction with the Trust’. The facts show deep concern and dissatisfaction as you well know. As the estate factors your conduct of business requires further enquiry. 18
Another round of correspondence ensued in which Mr Galbraith continued to probe my responses to Marc Horne. Another point he made was this:
When you visited Bute Estate you did so as a member of and Chairman [sic] of RACCE committee. I understood that it was normal for members of parliamentary committees to set aside their political agenda in order to gather facts so that the committee can jointly assess them and thereafter report to parliament. It seems to me, given your interview with Marc Horne, you are acting in a manner which is evidently partial and neither fair minded not balanced against normal practices of parliamentary committees. 19
I replied briefly saying that there had been three MSPs and clerks taking copious notes of the tenant farmers’ views. We all concurred. I repeated the evidence we heard of a depth of feeling about the tactics of his staff. I replied:
It paints a sombre picture of the way your staff conduct the factoring business on behalf of Bute Estate.
As to Mr Galbraith’s aspersion about partiality of MSPs, I suggested that various investigations such as the TFF and the Land Reform Review Group will be most interested in the evidence we collected. 20
Subsequently, I understand that Mr Galbraith wrote to the First Minister, Alex Salmond, seeking redress. Nothing further was heard of his allegations. However, calls for a statutory code of conduct for land agents became an important thread in RACCE evidence sessions through further committee hearings and the Land Reform Bill Stage 1 hearings in the autumn of 2015.
Measuring farming confidence – was it dented or upbeat?
Measuring the confidence of farmers and the condition of Scottish farming was undertaken for 19 consecutive years by the Bank of Scotland, part of the Lloyds Banking Group. The bank’s redoubtable chief economist, Professor Donald MacRae conducted these surveys by sampling over 2,000 of the bank’s farming customers. For several years, each January, his findings were presented to MSPs at breakfast briefings in Holyrood.
The December to January survey of 2013/14 saw 2,205 farmers mailed. 359 (16%) responded. It was conducted on a random basis and was anonymous. Prosperity and attitudes were probed. In the 2014 report three questions were included concerning the right to buy for tenant farmers.
Unsurprisingly, a majority were opposed to a right to buy for all tenants. The figures showed a slight rise from the previous year. Of those who answered, strongly against rose from 46% to 51% while strongly for rose from 10 to 11%. When separated into mainly owner occupiers and mainly tenants 56% of the former and 32% of the latter were strongly against, with 7% and 23% strongly in favour.
An automatic right to buy for 1991 Act tenants was contained in a new question for 2014. 43% strongly against and 12% strongly for. Again, comparing mainly owner occupiers and mainly tenants 49% and 22% respectively were strongly opposed while 6% and 31% were strongly for. Donald MacRae significantly highlighted that 42% of tenants supported the right to buy. 21
So, what can be made of these attitudes?
The business of farming is complex. The number of individuals who are both owners and tenants forms one element. That way a business can be developed, and extra ground found to produce more crops, whilst retaining the owner-occupied unit as collateral for bank loans. Owners want options to bid for shorter term leases to suit their business plans. Therefore, less leased land available would stymie such plans.
The price of land also plays its part. The LRRG, in its final report in 2014, looked at the capital value of agricultural land with good arable land at nearly four times the price in 2013 compared to 2003.22 It noted that ‘the value of all types of agricultural land increased significantly over the period.’ The LRRG went on to compare the price of land to other commodities in the same period. From an index of 100 in 2003, gold rose to near 400; English and Scottish farmland to 300; FTSE 100 index to 150; and UK house prices 140. Land has outperformed most other commodities for at least 25 years!
No matter how confident or profitable farmers consider their businesses, the price of land has risen sharply because many uses can be made of such investments, over and above short-term economic gains. Therefore, questions arise about the public benefits of tax reliefs on agricultural and forestry land:
The Group recommends that each of the exemptions and reliefs should be reviewed and reformed as necessary, to ensure that there is a clear and transparent public interest justification for public expenditure through revenue foregone. 23
For farmers and crofters building sustainable businesses, the changes in Common Agriculture Policy payments from single farm to area-based payments loomed large at that time. With hindsight, there’s also the threat to European market access; Brexit will remove Scotland and the rest of the UK from the EU Single Market. To the LRRG, sustainability went hand in hand with increasing the numbers of landowners in rural Scotland, in the public interest. 24
Many tenants are interested in buying their farms but the rise in land prices could never match the economic value of these acres. This makes farm purchases hugely problematic for mortgage seekers. A major corrective between land purchase prices and realistic returns might tempt some tenants to buy.
The Land Reform Review Group state that there had been 1,463 registrations of interest to buy by tenants early in 2014, of which 906 were still active. That amounts to a full quarter of secure 1991 tenancies. No information is available on the reasons behind the 557 registrations which have come off the register. My points above are germane to this. The LRRG report states that:
Some registrations would have been removed because they had lapsed, while others may have been rescinded for inaccuracies. In some cases, the right may had been exercised or the tenancy may have ended for other reasons. The Review Group’s understanding is that, while no purchases have apparently taken place by a tenant exercising their right under the legislation, the existence of the right has facilitated that outcome in some cases. 25
The edginess of relations between tenants and landlords is real. And since the AHSA03, the tension has far from died away. Raw nerves were exposed by the slow progress of the TFF. The Salvesen v Riddell case upset the hopes of several hundred limited partnership tenancies when the Supreme Court ruled in 2012 that parts of the 2003 Act were ultra vires, as we shall see.
Protection for tenant farming in Land Reform Bill 2015?
When 11,065 responses to the Scottish Government consultation on the draft Land Reform Bill were analysed, 64% of individuals who replied were in favour on including improvements to the potential for tenant farming in Scotland in the Bill. In contrast, 65% of organisations were opposed.
In 2011, Richard Lochhead decided agricultural holdings were part of land reform and would be handled in one bill. Thus, agricultural holdings formed nearly half of the bill launched in 2015. Many landlords thought they should be kept separate and made it plain that more time was needed to set out the best approach – if necessary, in the following session of parliament. Such a delay was an unacceptable and a stalling tactic that bedevilled real farm tenancy reform for far too long.
Landlord power plays pressed on during the consultation and scrutiny of the Land Reform Bill. RACCE had also to face the consequences of the flawed, but well-meaning clauses from 2003 as MSPs weighed against some real tenancy reform. 26
Spring ploughing Black Isle RHS with Whitmuir Organics Bute visit seemingly tranquil
1 LRRG Part 7 Chapter 28 p194 et sequi
2 Scottish Tenant Farmers Action Group, see Case for the right to Buy
3 Fergus Ewing, Rural Development Committee, 3 December 2002
4 Scottish Parliament OR Agricultural Holdings Committee, Stage 2 amendment 134
5 Oral question on 21 January 2010, www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-10/sor012102.htm#Col22993
8 RACCE oral evidence col 521, Richard Blake 18 January 2012
9 Written evidence anonymously private papers to RACCE S4/12/1/1(P)
10 RACCE report paras 105-109, 2012
11 Written evidence anonymously private papers to RACCE 2012 S4?12/1/1(P)
13 Appendix and Briefing from NFUS 24 and 25 May 2012 to MSP
14 Appendix and Briefing from NFUS 24th and 25th May 2012 to MSPs
15 Scottish Farmer 16 June 2012
17 Scotland on Sunday, 14 July 2102 18 CKDG LLP by James Galbraith letter to RG
18 July 2012 (circulated to other RACCE members)
19 RG letter to JG 31 August 2012
20 JG letter to RG 22 August 2012
21 RG letter to JG 5 September 2012
22 Lloyds Bank Farm Survey 2013/14
23 LRRG Chapters 38 and 39 p175
24 LRRG Part 6 Section 25 para 43, p177
25 LRRG Part 6 Section 25 para 48 p178
26 SPICe and LRRG
27 Responses to Land Reform Bill consultation.