Faculty of Advocates identifies human rights concerns over land reform

The Faculty was invited by the Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee to comment on the Bill from the perspective of the European Convention on Human Rights (ECHR).

Mungo Bovey QC is among the witnesses giving oral evidence to the committee this morning.

In written evidence, the Faculty said the Bill’s principal impact would be in the areas of Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) and Article 1 of Protocol 1 (protection of property).

Looking to the proposed Tenant Farming Commissioner (TFC), the Faculty noted that the Policy Memorandum issued with the Bill stated that the purpose of the TFC was to help resolve disagreements within the agricultural land sector.

“At paragraph 62, it explains that tenant farmers and landlords will be able to refer alleged breaches of the Code of Practice to the TFC. At paragraph 71, it distinguishes between the role of the TFC and the role of the Land Court, although acknowledges that there will most likely be an overlap in the matters referred to the TFC and the Land Court. At paragraph 80, the Memorandum notes that the TFC’s role is not to adjudicate disputes. We find it difficult to reconcile these statements, which in turn make it difficult to establish what the jurisdiction and purpose of the TFC will be,” said the Faculty.

“An adverse determination by the TFC may result in reputational damage to a landlord or tenant farmer…It is important that the role of the TFC is properly defined, so that its adjudications are ‘in accordance with law’ and proportionate,” said the Faculty.

Was the TFC an independent tribunal, the Faculty asked.

“We note at paragraph 80 of the Memorandum that it is recorded that the Scottish Government considers that it is not necessary for the Land Commission (including the TFC) to be an independent commission, because it will not be adjudicating disputes…we consider that the contrary may be arguable,” added the Faculty.

“There is no right of appeal from a determination of the TFC. An aggrieved person could seek a judicial review of the TFC’s determination, although Parliament may wish to consider whether a statutory appeal would be preferable…”

Under the Bill, the TFC would have power to compel a person with an interest in a tenancy to respond to a complaint, and could impose a fine for a failure to respond. The Faculty believed that there was a risk that “compelling people to take part in the process could render the determination unfair”.

Moving to the part of the Bill which deals with agricultural holdings, and the possible forced sale of a holding if the landlord was in breach of the lease, the Faculty said that an order for sale clearly constituted an interference with the landlord’s right to peaceful enjoyment of his possessions.

“Any such interference must be proportionate…it is questionable whether the ability to apply to the Land Court to order the sale of the agricultural holding can be said to be no more than is necessary…Arguably, the stated aim (of bringing the land back into productive use) could be achieved by less intrusive means – for example, an order requiring the landlord to pay the tenant the costs of remedying the landlord’s failings – whether prospectively or retrospectively” said the Faculty.