Agricultural Holdings (Amendment) (Scotland) Bill: Stage 2
Good morning, everybody. Welcome to the 13th meeting in 2012 of the Rural Affairs, Climate Change and Environment Committee. Members and the public should turn off their mobile phones and BlackBerrys, as leaving them in flight mode or on silent will affect the broadcasting system.
We have received apologies from Richard Lyle, whom Nigel Don is substituting for.
Agenda item 1 is stage 2 consideration of the Agricultural Holdings (Amendment) (Scotland) Bill. I welcome the Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, and his officials to the meeting. I invite him to introduce his officials.
The Cabinet Secretary for Rural Affairs and the Environment (Richard Lochhead)
Good morning. Given the topic, I have various legal representatives with me. Michael Anderson, Jonathan Brown, David Barnes and Fiona Leslie are the officials who are dealing with the bill.
It is good to be at the committee’s 13th meeting. I am sure that it will not be unlucky for some.
Excellent.
We move to consideration of the marshalled list of amendments. We will consider the bill in the following order: sections 1 to 6 and then the long title.
Sections 1 to 3 agreed to.
Section 4—Transitional provisions
Amendment 1 is in the name of the cabinet secretary.
As members know, during the stage 1 debate and in the Scottish Government’s response to the Rural Affairs, Climate Change and Environment Committee’s stage 1 report on the bill, I promised to lodge an amendment following my assessment of the evidence given by witnesses at stage 1 and by the committee in its stage 1 report.
As the committee knows, the bill marks the final stage in the implementation of recommendations made to the Scottish Government by the tenant farming forum. Those recommendations, a number of which have already been taken forward by an order under the Public Services Reform (Scotland) Act 2010, represent an agreed and carefully negotiated set of proposals that command stakeholder support from across the tenant farming sector.
When a secure agricultural tenancy passes, under the law of succession, the person succeeding must give notice of the acquisition to the landlord. Depending on the circumstances, that notice is given under section 11 or 12 of the Agricultural Holdings (Scotland) Act 1991. There is then scope for the landlord to serve a counter-notice and for the matter to be referred to the Scottish Land Court. Once the person has succeeded, under section 25 of the 1991 act, the landlord remains entitled to serve a notice to quit on the successor tenant farmer.
When the successor tenant farmer is not, as referred to, a “near relative” of the deceased tenant farmer, that notice is incontestable. When the successor tenant farmer is a near relative, the successor is entitled to serve a counter-notice, requiring that the Scottish Land Court consents to the operation of a notice to quit. In other words, near relatives enjoy a degree of protection that other successors do not.
Currently, the definition of a “near relative” includes a surviving spouse, a surviving civil partner and a natural or adopted child of the deceased tenant farmer. Section 1 of the bill amends that definition to include grandchildren. That change will help to meet our objective of widening the class of people entitled to that degree of protection when succeeding to an agricultural tenancy under the 1991 act. It will make it easier for grandchildren to inherit farm tenancies and will help new and younger entrants to get a start in tenant farming, which I think all members would agree will be beneficial to the wider industry.
Section 4 contains transitional provisions and section 4(1) contains the relevant provisions in relation to section 1. It currently provides for the change in the definition of a “near relative” in section 1 to have effect only where the death of the tenant farmer occurs after the bill comes into force. Amendment 1 will change that transitional provision so that it will now apply when the notice under section 11 or 12 of the 1991 act by which the successor tenant farmer acquires the tenancy is given on or after the date on which section 1 comes into force. Therefore, section 1 will now also cover circumstances in which the death of the tenant farmer occurs before the bill comes into force but the process of acquisition by the successor is not complete.
The change is likely to benefit only a small number of individuals; nevertheless, it will afford those individuals and their families the same level of protection as all grandchildren will have in future.
Amendment 1 also gives effect to the views of the key members of the TFF. In line with the recommendations of the committee in its stage 1 report, the amendment is not involved in the passing of retrospective legislation; rather, it alters the point in the process to which the section applies.
For those reasons, I ask the committee to support the amendment.
I move amendment 1.
I was not a member of the committee during earlier consideration of the bill, so I ask you to forgive my lack of understanding, cabinet secretary, but I think that I have just heard you say that this is not retrospective legislation. I have no problem with the impact of the amendment and I certainly do not intend to oppose it, but I have one or two concerns about the retrospective nature of what is being done. Could you expand on why you say that this is not about making retrospective legislation, if, indeed, that is what you said?
It is not retrospective because the provision will apply only to situations that arise after the act comes into force. However, it changes the emphasis and puts it on the launching of the notice as opposed to the point at which the tenant farmer dies. If the amendment is agreed to, it will not matter whether the tenant farmer dies before or after the act comes into force; however, the notice will have to be served after the act comes into force. Had the provision been retrospective, it would have applied to all circumstances that arose before the bill came into force, but we took the decision not to take that approach. Before, what mattered was when the tenant farmer died. Now, it does not matter whether the tenant farmer dies before or after the act comes into force; what matters is when a notice is served.
But there will still be an impact on a situation that could have occurred before the bill comes into force.
Yes, as regards when the tenant farmer died.
I would have thought that some of your legal representatives and others could have had considerable discussion about whether that is retrospective.
The amendment places the emphasis on the point at which the notice to quit is served, but the situation could involve a farmer who died before the act came into force.
So there is a retrospective element to it.
In respect of the circumstances that lead to the notice to quit, but not in respect of the actual notice to quit.
I recall the evidence that we took at stage 1 on this specific issue. We had an interesting discussion on this point. The view that was expressed by Scott Walker, the chief executive of the National Farmers Union Scotland, was that the proposal was not retrospective. I recall that there was support for such an amendment across the representatives on the tenant farming forum, with the exception of Scottish Land and Estates. However, I see from the explanatory note to amendment 1 that Scottish Land and Estates has said that, in the interest of the bill proceeding, it would be able to live with the amendment. I hope that I have not misrepresented anyone’s view.
On that point, I may be wrong—and I am not speaking for Scottish Land and Estates, either—
Nor am I.
I think that Scottish Land and Estate’s opposition to retrospection was based on the provision going back perhaps five years—members may correct me if I am wrong. However, if my understanding is correct, the proposal does not seem to be legally retrospective.
As members have no other points, I ask the cabinet secretary to wind up.
I thank the committee again for the opportunity to move amendment 1. I listened closely to the committee’s views before lodging it.
This is a useful opportunity to confirm that I will be back in contact with the committee on many of the wider issues that face tenant farmers, which we have previously discussed, and as we look to progress the TFF’s on-going work. As members may know, the TFF is putting in place work plans on quite a good timescale to make recommendations to me, as cabinet secretary, and the committee. It will consider some issues that relate to recommendations in the committee’s report, such as extending the definition of a near relative and rent reviews. I give the committee that assurance.
In the meantime, I welcome the committee’s support—I hope—for this important amendment, which will make a difference to a small number of families in respect of an issue that the committee flagged up to the industry and to me, as cabinet secretary.
Amendment 1 agreed to.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank everyone for their brevity.