Chamber and committees

It is an interesting area. Like you, convener, I am acutely aware of the difficulties of law reform in this area. Some of us can remember and, indeed, were on the Rural Development Committee that considered the 2003 act. The act led to the Scottish Government being defeated in the case of Salvesen v Riddell, because the law sought to change contracts retrospectively. At the end of the day, that was deemed to contravene article 1 of protocol 1 of the European convention on human rights, which protects property rights. Therefore, as a matter of principle, it is a difficult area, because there is a risk that any retrospective change in contracts will lead to the legislation hitting the rocks.

I was on the committee that considered the act; I do not think that the ECHR was ever mentioned at that point, but I believe that officials are now very much aware of it—perhaps unsurprisingly. It is a difficult area and, like the convener, I think that it would be preferable if both sides—tenants and landlords—could reach an agreement. The fact that we are going into the summer recess will provide a useful opportunity. In not pressing the amendment, I thank the cabinet secretary for listening to the arguments. I hope that parties can come together—I do not think that they are that far apart—and that an agreement can be reached. I would think that that would be better than having anything imposed on them, as past experience has shown.

In saying all that, I must caveat that, although I am a lawyer, I am by no means an expert in the area. Had I been in practice now, there is no way that I would have taken on any such litigation, for fear of risking invoking my professional negligence insurance.

Amendment 529, by agreement, withdrawn.

Amendment 234 to 239 moved—[Mairi Gougeon]—and agreed to.

Amendment 240 moved—[Tim Eagle].

Not moved.

Thank you for having me as a guest to the committee, convener, and thank you to your members. I am here because Scottish Land & Estates, on behalf of landowners, invited me to move a series of amendments—

In this group alone?

I was just saying, convener, that I am here because Scottish Land & Estates contacted me some time ago to ask whether I would be willing to lodge amendments in relation to the right of resumption, as set out in the act. Since those amendments were substantially agreed by the Scottish Tenant Farmers Association, I agreed to do so on the basis that both tenants and farmers agree with the approach that I am about to advocate.

I say that by way of background. Although I have not received written confirmation from the STFA that that is the position, I have spoken to Chris Nicholson and believe that to be the case. I will set out what I have to say in more detail on Tuesday morning, when I hope to appear virtually, convener, rather than in person. I thought it fair to offer that explanation.

Members will be pleased to know that I will be brief. Amendment 528, in my name, is related to my amendments in the next group, which aim to introduce an alternative for fairly compensating a tenant when a part of a tenancy is resumed. There are two situations when the tenant’s interest in the lease might need to be valued, and my amendment seeks to clarify that the tenant farming commissioner may issue a code of practice in relation to both.

The first is when only part of a tenancy is resumed. My amendments in the next group address that situation, which I will come to with your permission, convener, on Tuesday morning. The other scenario is when an incontestable notice to quit is served and the tenant is giving up the whole of the holding rather than part. My amendments in the next group do not specifically cover that scenario, but I expect that, if progress can be made now on how to deal with partial resumption, similar provisions could be lodged at stage 3 to deal with a notice to quit. Amendment 528 would enable the tenant farming commissioner to issue guidance for both scenarios.

As I will come on to in the next group of amendments on Tuesday morning, amendment 528 and those that are associated with it have widespread industry support. I am grateful to the organisations comprising the tenant farming advisory forum, which I understand include SLE, the STFA, the NFUS, the two valuers associations—the Central Association for Agricultural Valuers and the Scottish Agricultural Arbiters and Valuers Association—and the Agricultural Law Association. As you and members will know, convener, there is a great body of expertise in all those groups. They have come forward with that option and, as I understand it, have been in discussion with the minister’s officials for some considerable time.

Therefore, there is hope among both sectors that the broad approach that they have suggested, rather than that which is currently set out—for reasons that I cannot come to now because they are relevant to the amendments in the next group—might find favour with the minister.

I move amendment 528.

Of course, convener. That is a good suggestion—your expertise as a former surveyor with your interests would bring extra experience and wisdom to the table.

What you say is one reason why I believe that the SLE and the STFA feel that another solution is required for tenancies under the 1991 act, although the position is different under the 2003 act, as we might come on to on Tuesday. My understanding is that the scheme that is proposed in the bill does not really meet modern circumstances. It is a bit out of date as it is based on land values. It does not really reflect the reality or the costs to the tenant of partial resumption, when new gates and fences are required to be erected, and so on.

We will come to all that on Tuesday. This was always a probing amendment, as I indicated to the cabinet secretary, so that we could have this discussion, for which I am grateful. I know that her officials will continue their dialogue with the various interests, and I am sure that that means that the law will have a better chance of not falling foul of the European convention on human rights or other hazards. On that basis, I seek to withdraw amendment 528, with the committee’s permission.

Amendment 528, by agreement, withdrawn.

Amendment 223 not moved.

Section 9 agreed to.

After section 9

I am grateful for the cabinet secretary’s assurance, and I am happy to work with her with the objective of coming up with a legally sustainable and accurate form of the amendment. I believe that both the SLE and the STFA accept that there are technical infelicities in the amendment, and I may have communicated those to the officials. If not, I suspect that they will be listening and I may do so before the night is out—who knows?—if they are at their desks.

Having read the submissions from the SLCC, the OPG and others, it is clear that this is an area that is not without complexity. The fact that the bill has apparently been removed from the legislative programme begs the question why. I think that, before moving to close the petition, which otherwise I would do, it would be useful to find out why that was done. I think that it is a legitimate question that should be answered. If we ask it and get an answer now, that might save time in the next session of Parliament, were the petitioners to bring the issue back to us. I do not think that we would be unduly extending the work in this session of Parliament, which is limited, given the fact that we have less than a year to go. I am curious about the reasons for the Scottish Government not proceeding with the bill.

Having said that, and having been a practising solicitor for some 20 years—although I am no longer—I note that it is up to each solicitor to assess the capacity of a client, and if one has concerns then one has to raise them, as there is a clear professional ethical duty to do so. Looking at the evidence that we have seen, there seem to be vanishingly few cases where the solicitors have been accused of coercion in any way—I think that that is specifically stated. Of course, it could be said of me that, as a solicitor, I would say that, wouldn’t I?

I sympathise with Mr Torrance’s approach and would agree with it were it not for the fact that the Scottish Government appears to have supported the proposals but no longer does so. If we find out why the position has changed, we may well feel that we can close the petition, having received a satisfactory answer. Mr Torrance may be happy with that.

Yes. It should also be said on the record that, were there to be a new system involving a requirement for a medical opinion, in practical terms, that would involve probably tens of thousands of certificates in situations where, quite frankly, they would not be necessary. Solicitors would be under an obligation to take a precautionary approach, and it would clog up the process of, for example, drawing up a will or arranging a power of attorney, meaning that someone could cease to have capacity in the period in which the process of obtaining medical opinion is going through, or they could die without leaving a will, meaning that an unnecessary intestacy would arise. The system is not without its flaws, but I suspect that the costs of the new process of obtaining the certificates would be very substantial indeed for the client, because I cannot see the state paying for it any time soon.

I would support that, but in doing so I would point to the fact that the petitioner, who has another petition live before this Parliament, is not in any way losing anything today. There is no door being shut on the petitioner. The petitioner is already in the room with the other petition, which is directly considering the RAAC issues.

Moreover, as you have indicated, convener, as well as the members’ business debate, there is virtually constant accountability through members raising questions about RAAC every week. The Government’s response has been inadequate by any stretch of the imagination, and that has been covered in the chamber time and again.

I stress that there is no need for the petitioner to feels that today is a disappointment because RAAC is very much a live issue before Parliament. Whatever view one takes about the performance of the Government, that is undoubtedly true.

Another brief point is that, if there were to be another regulator—another quango—it would make not a blind bit of difference to the problems that face us at the moment. By definition, any such new quango could not impact things that have happened before its existence and establishment. You cannot apply judgment retrospectively in that regard, nor do I think that a new public body would really make the kind of difference that most people want to see. I simply do not think that it is the right solution to an admittedly very serious problem. That is just a personal view, and it could be right or wrong, but it is not the main point. The main point is that the petitioner has done extremely well in raising this in Parliament, and has done so successfully, with members of all parties pursuing it vigorously and continuing to do so between now and next May.