Chamber and committees

I have a very short question, cabinet secretary, which you might not be able to answer today. I wonder whether the Army is still involved. I found that sergeant majors and suchlike were the most effective at gaining the respect of certain young people—guys, mostly—and turning around their behaviour.

In prevention and diversion work, including in Outward Bound Trust work, schools and residential courses, where lots of young guys get together, bond as a team and are taught how to do certain things. They learn discipline and it perhaps gets them away from housing schemes where they have had a difficult time in some cases—I suspect that that will apply in many cases. That was an effective means of helping to prevent youngsters from going down a criminal path.

Good morning, cabinet secretary and officials. The petitioner, Mr O’Kane, lodged his petition in August 2022. On the disturbing culture of youth violence in Glasgow city centre, he said:

“Children as young as 13 years old have been kicked unconscious and left in pools of blood whilst the incidents are videoed and circulated on social media.”

Since then, the main findings of the Scottish Government’s Scottish crime and justice survey 2023-24 indicated that

“The proportion of violent crime offenders aged under 16 was 31%”.

I raise that because it is a huge increase from before. In 2021-22, that proportion was 8 per cent. It has risen fourfold since the petition was lodged, despite the petitioner raising, as I said, a graphic example of repulsive violence. What has gone wrong? Why is there such a big increase? Is it because justice is seen as a soft option these days and because young people feel, rightly or wrongly, that they can get away with such behaviour with impunity?

Thank you. I was aware that the new policy sets out factors that may indicate that a child should be prosecuted, and you have alluded to some of them. They include

“severe harm to the victim, including physical and psychological harm/trauma”

and

“evidence of the use of force along with the use of violence, threats of violence and/or coercion or coercive control”.

In the text that I have here, the implication is that, where serious impacts and serious criminal behaviour have been alleged, there will be a prosecution. However, the actual wording is that there “may” be a prosecution; plainly, therefore, there is discretion. I understand that, but because the word “may” is used, rather than “shall”, it still leaves a sense that, in some cases—even in those serious cases—where the victim feels there should be a criminal prosecution, that will not happen.

In short, Lord Advocate, are you saying that the new system means that more serious cases are going to prosecution? Are you happy to say that? That is the implication that I get from your whole demeanour, which I absolutely respect. The work that you and your staff do is incredibly difficult—I understand that—and having senior people dealing with cases now is undoubtedly a major step forward. I accept all that. However, can you actually say that more of the serious cases will now go to the criminal justice system than was the case before the new rules?

A key aspect of the new policy is that the views of the victim should be obtained before the decision whether or not to refer to the reporter is made. Does the victim have a say in whether there should be a prosecution? In what way, under the new rules, does the victim have a greater say than before? All too often, victims feel like they are bystanders in the justice system—they are not kept advised about what is happening and they often feel deeply disappointed by what happens. I know that a huge amount of good work is done by the police and others, but what is new? What is different? How will the views of the victim be treated more seriously under the new policy than they were treated under the old policy?

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.

Good morning. At the committee deliberations last Wednesday evening, I moved amendment 528, regarding the tenant farming commissioner. I moved that amendment on the same basis that I will move amendments 529 to 534 this morning, namely, that Scottish Land & Estates requested that I move them in order that there be a debate to enable discussion and to get a response from the cabinet secretary to facilitate an agreement after further discussions have taken place between all stakeholders and the cabinet secretary and her officials over the summer.

I should make it clear that I am not expressing partiality for one side or another. You could say that I am taking an independent stance in the hope that agreement can emerge after the discussions. Some fruitful discussions have already taken place, as landlords and tenants recognise.

SLE has drafted amendments 529 to 533 and its position is that the amendments set out an alternative to the provisions in the bill for the valuation of compensation that is due to a tenant under a 1991 act secure tenancy when the tenant is dispossessed of occupation of part of the land in the tenancy.

SLE-drafted amendment 534 deals with the more modern fixed-duration tenancies that were created in 2003 and would not apply changes to the statutory default terms of those tenancies. The amendment seeks to provide a much-needed point of clarification, as I will detail shortly. The amendments are of a probing nature, and I accept that there are deficiencies in the drafting. They are minor deficiencies but they are, nonetheless, deficiencies. I will not go through those, because I think that they will be communicated directly to the cabinet secretary’s officials, if that has not already been done. The intention is to provide a fair approach to compensation that stands a far greater chance of meeting the needs of current and prospective tenants and landlords than what is currently set out in the bill.

I believe that amendments 529 to 533 have the backing of the various stakeholders from the sector on the tenant farming advisory forum. I listed them in the last meeting, so I will not do that again, other than to say that they represent landlords, farmers, professional advisers and lawyers. Amendment 534 also has the backing of all those bodies, with the exception of the Scottish Tenant Farmers Association, whose position I will cover separately at the end of my remarks.

Amendment 529 sets out the heads of compensation that would be due to a tenant, including a new head of claim, reflecting the value of the tenant’s interest in the part of the lease being resumed. The wording of that head of claim would replace the potentially damaging and controversial provisions in the bill that would have equated the tenant’s interest in the lease with the capital value of underlying land. It would also replace the existing rent multiplier and the related cap on disturbance costs, which most now agree is out of kilter with today’s rising costs and comparatively low rents. There are inevitably costs associated with part of the lease being resumed, such as the requirement for new gates or fencing. It is a matter of common sense that, if you take a piece of land away, appropriate action would need to be taken to fence off the old from the new. Although there would not be a limit on the amount that could be claimed for disturbance costs, the tenant would be required to minimise the costs and to provide vouching evidence that the costs resulted from the resumption.

Amendment 530 would remove the prescriptive valuation methodology from proposed new schedule 2A. A valuation of the tenant’s interest in the lease should be conducted by an expert valuer, as is the case in agricultural tenancy law, such as assignation. My amendment to new schedule 2A would provide for the appointment of the valuer by agreement between the parties, or, if that is not possible, within defined timescales. Where both parties cannot agree on the appointment of a valuer within the prescribed timescale, an application would be made to the tenant farming commissioner to appoint an independent valuer. I believe that that reflects the cabinet secretary’s own amendments.

My amendment 534 would ensure that there were no changes to the 2003 act, which sets out the default statutory terms if parties do not agree otherwise. It simply provides clarification, which landlords and tenants have sought, with regard to section 17 of the 2003 act, that parties are not bound by the statutory default if they can agree something else between themselves. That means that tenants could, for example, seek a maximum percentage of the tenancy that could be resumed or an alternative compensation calculation and that landlords could seek, for example, an alternative to the 12-month notice period. It would allow parties to come to arrangements that suited their particular circumstances but in the knowledge that, if they could not agree, the statutory defaults would apply. All the organisations in the forum, with the exception of the STFA, believe that leaving the rest of the terms of the 2003 act unchanged would be a much-needed signal to the sector that the Government will not interfere retrospectively with existing agreements between landlords and tenants and that these leases are safe to use for longer lets.

Although it is recognised that landlords’ confidence has been damaged by changes to legislation and that landlords argue that that confidence might take some time to recover, it is hoped that these amendments would be a first step to the creation of much-needed opportunities for new entrants or progressing farmers to access land on a more secure footing than mere annual contracts provide. That would be of benefit to landlords, tenants and the agricultural sector as a whole.

I am sorry that my contribution is somewhat long, but the amendments are rather technical.

Landlords believe that those changes would encourage more letting and lead to better agreement between the parties and a more positive overall relationship in the countryside. That is the thrust of where they are coming from, as I understand it.

Although Chris Nicholson was heavily tied up with the Royal Highland Show, he nonetheless took time last night to send me a short note on the STFA’s position. The STFA says that, unfortunately, it cannot support the probing amendments 529 to 533, which incorporate provision

“which disadvantages the tenant ... including a reduction in the notice period”—

from one year to six months—

“loss of a tenant’s right to terminate the tenancy, and loss of the tenant’s right to have land restored”

to the lease following resumptions. It says that those changes have not been agreed among stakeholders. It says:

“While STFA recognise it may be possible to further modernise disturbance payments to tenants following resumptions, with the time constraints on the Land Reform Bill we accept the certainty provided by the current provisions in the Bill.”

The STFA supports the principle of amendment 528, which was debated last week, to enable the tenant farming commissioner to produce a code of practice and guidance on loss of land from a tenancy through resumption or an incontestable notice to quit.

The STFA says that, although it does not support the probing amendment 534, it

“would encourage Scottish Government to further develop a fair methodology around compensation for 2003 Act tenants when land is resumed from their leases while clarifying S17 of the 2003 Act.”

I hope that I have made that clear. Reading this debate and, in particular, hearing the cabinet secretary’s response in a moment might be of some value to those in rural Scotland with an interest in the matter. I am happy to have spoken to my, as I said, probing amendments.

I move amendment 529.

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?