Many readers will be aware that the Land Reform (Scotland) Bill currently making its way through the Scottish Parliament contains many reform measures relating to agricultural tenancies arising from the Agricultural Holding Legislation Review Group’s Report which was published in January of last year.

The Bill as a whole and the agricultural holdings provisions in particular have received detailed scrutiny from the Parliament’s Rural Affairs, Climate Change & Environment Committee. The Committee issued its Report on the Bill at the beginning of December and the Scottish Government has now issued its response.

One of the key recommendations of the AGHLRG’s Report was the introduction of a tenant farming commissioner. The commissioner’s proposed role was to work with tenants and landlords to create and promote codes of good practice in order to cultivate constructive relationships in the sector. The commissioner was to be given the power to investigate breaches of the codes but the Group’s Report and the provisions about the introduction of the commissioner in the Bill did not include any power on the part of the commissioner to impose penalties on any party for a breach of the code, although powers were given to impose penalties for non-cooperation in an investigation.

RAACE in its Report felt that the commissioner needed to be given teeth and should be given powers to impose penalties for breaches of the code so that for example a tenant could complain to the commissioner about a landlord not following a code of practice in relation to the conduct of a rent review and the commissioner would have the power to impose a fine or other penalty on the landlord for that breach if it was established.

Many commentators were concerned about this not least of all because of the need for due process and fairness. Any power to impose a penalty should allow a person who feels that they have been treated unfairly to be able to appeal that decision. Formal procedures about making a complaint and having a right to respond would have to be set in place. The commissioner would become a quasi-legal officer with all sorts of unintended consequences.

The Scottish Government in its reply to RAACE have emphasised that research commissioned by the AGHLRG found that two thirds of tenant farmers were very or fairly satisfied with their relationship with their landlord with only 15% being dissatisfied. Accordingly, Scottish Government take the view that it would be disproportionately heavy handed to focus the role of the tenant farming commissioner on enforcing penalties in cases of private contractual disputes between parties and is not proposing to introduce such a power.

Another part of RAACE’s report which caused some alarm was its view that the issue of the right to buy for 1991 Act tenants is an ongoing one and its recommendation that the Scottish Government explore options for introducing such a right to buy in certain circumstances for 1991 Act tenancies only. The Scottish Government’s response supports the AGHLR which ruled out an absolute right to buy for tenant farmers. The Government’s view is that the existing provisions of the Land Reform Bill, which allow a tenant to apply to the Land Court for an order for the sale of a holding where a landlord is in material breach of their obligations and the tenant cannot farm properly, the abolition of the need to register a pre-emptive right to buy and the expanded rights of a secure 1991 Act tenant to assign their tenancy would as a combination of measures effectively address the real issues faced by tenant farmers in Scotland and accordingly it has no plans to introduce a right to buy for secure 1991 Act tenants.

The Bill continues its progress through Parliament and is expected to become law by the late spring. All of us with an interest in tenant farming will be watching developments closely!