Chamber and committees

In relation to the control of deer, those matters are being dealt with and considered through the Natural Environment (Scotland) Bill; that is where matters in relation to control are considered. Here, we are dealing with the impact on the tenant. Ultimately, we are trying to ensure that there is fair compensation to the tenant for damage that comes about through no fault of theirs.

Emma Harper’s amendment 524 reverses a change made by the bill to clarify the law. I do not believe that the amendment is necessary. A tenant who has a right to kill and take game does not require permission from the landlord to do so. They do not need to have a right and permission, which is the effect of the amendment.

Amendments 518 and 519 seek to take away the right of a landlord or tenant to refer a question about compensation to the Scottish Land Court. Instead, there would be compulsory arbitration, which is unusual. It would be left to ministers to make that work, if they could, through secondary legislation. I appreciate the reasons why those amendments have been introduced. I agree that it would be helpful to consider, over the longer term, how alternative dispute resolution processes such as arbitration might help the tenant farming sector. However, we need to be able to explore those issues further in discussions with our wider stakeholders.

I mentioned last week that we would look to consult on the powers of the tenant farming commissioner. We will look to add to that the theme of alternative dispute resolution, so that we can tease the matter out more thoroughly.

I ask the member not to press her amendments.

I absolutely appreciate that. The reason why we are discussing these issues is because they are not necessarily easy to resolve. Some of them have been under discussion for quite some time. However, notwithstanding the issues that relate to amendment 542, I am keen to commit to having wider discussion, engagement and consultation, because there are issues in relation to the Arbitration (Scotland) Act 2010, some parts of which have not been commenced. Ultimately, we want to ensure that we get this right for everybody involved in the process, which is why wider engagement and consultation are so important.

Thank you, convener. I would have to look at that specific point. Other than that, I do not have anything further to add to my comments.

As we have touched on in our debates on previous groupings of amendments, including groups 37 and 38, I absolutely appreciate why Emma Harper has lodged amendment 542 and why we should consider encouraging arbitration for some disputes. However, there needs to be space for alternative dispute resolution more generally. Although the amendment focuses on arbitration, there are other tools that can be considered.

There are also technical issues with the amendment, given that parts of the Arbitration (Scotland) Act 2010 have yet to be commenced, in part because of the challenges of making arbitration work for statutory disputes. At present, under the Agricultural Holdings (Scotland) Act 1991, tenant farmers and their landlords are able to undertake arbitration and still have the right of appeal, on a point of law, to the Land Court. However, that process is not used, because some parties consider that the system does not work and will not be entered into in good faith.

For the reasons that I have outlined in relation to previous groupings, and because of the wider commitment to tease out some matters in more detail and have a wider discussion with industry and stakeholders, I ask Emma Harper not to press amendment 542.

The Scottish Government amendments in the group make procedural changes to the provisions on appointing a valuer for the resumption process that is set out in sections 11 and 12. Ultimately, those changes meet stakeholders’ asks in that area. The current processes require the tenant farming commissioner to appoint a valuer in every resumption by the landlord of land in the lease. It should be noted that my amendments relate to the procedural aspects of the resumption notice and the appointment of a valuer, not to the basis of compensation for a tenant and what the valuer is to value. The amendments do not change those aspects of the bill.

My amendments 234 to 237, 242 and 243 modify the wording of section 11, which is named “Resumption in relation to 1991 Act tenancies”, in order to align it to the legal position that a landlord of a 1991 act tenancy cannot resume all of the land in the holding. The amendments are required because the existing wording could cause confusion.

My amendment 238 removes the requirement for the landlord to send the tenant farming commissioner a copy of the resumption notice that is issued to the tenant.

My amendments 241 and 258 extend the timescale in which a tenant can terminate a tenancy following receipt of a notice of resumption from 28 days to six weeks. Amendment 241 covers 1991 act tenancies and amendment 258 covers 2003 act tenancies. The extension will provide tenants with more time to fully consider the implications of a notice of resumption prior to coming to a decision on termination.

My amendments 522 and 523 make consequential changes arising from amendments 256, 257 and 260 that are similar to those made by amendments 239, 246 and 248.

My amendments 245, 251 to 253 and 263 to 265 make minor textual changes to how the tenant farming commissioner is referred to in provisions for 1991 act and 2003 act tenancies.

The Government and the non-Government amendments in this group provide the first chance to consider the issues about resumption that were raised during stage 1.

In agricultural tenancies, a landlord and tenant agree in the farm lease that the tenant will have exclusive use of the farm for the term of the lease, but there are circumstances when the landlord is able to take back part of the farm before the lease has ended. That might be reasonable for a particular case, provided that the tenant is properly compensated for loss and inconvenience.

All sides agree that the current level of compensation for resumption is too low and therefore unfair. The bill changes that for tenancies under both the 1991 act and the 2003 act. The approach for both types of farm lease is for the landlord and the tenant to share the uplift in the value of the land being resumed. That capital value approach uses the model that was previously agreed by the Parliament for compensation for the relinquishment of tenancies.

Amendment 289 does not take account of the need for tenant farming businesses to be able to play their part in sustainable and regenerative agriculture.

On definitions, the member will no doubt be aware that we had similar discussions throughout the passage of the Agriculture and Rural Communities (Scotland) Act 2024. That act required us to publish a code of practice, which we did last week. The code of practice provides guidance and examples, recognising that sustainable and regenerative agriculture is a collection of different practices. That is how we addressed the issue that the member raises. We did not look to define it in that legislation, which is why we are not looking to define it in this bill.

At present, a tenant’s landlord can object to a tenant’s diversification if it will substantially prejudice the use of the land being diversified for agricultural purposes in the future. Tenants need to be able to take a whole-farm approach to making the right decision for them. As the people who actively manage the land, they know more than anyone else what works and what needs to be done. The bill helps them to do that by reforming the grounds on which a landlord can object to proposed diversification, so that the objection must be that the diversified use would substantially prejudice the use of all the land in the lease for the purposes of sustainable and regenerative agriculture. Therefore, the amendment would simply mean that we maintain the status quo and that tenant farmers would not have the same ability to take part in or benefit from our future support framework. It is a backward step that should be resisted. I ask the committee not to support the amendment.

I have concluded my remarks, but I am happy to take a point from Mark Ruskell.

I understand Fergus Ewing’s reasons for amendment 528 and the need for clarity on the basis for the valuation for resumption. It is not necessarily necessary for the 2016 act to detail all the topics that the tenant farming commissioner can issue codes of practice on, but I appreciate why the tenant farming sector might also wish to see that in the bill itself. There are some particular issues with the wording of the amendment, but I am happy to work with Fergus Ewing to revise amendment 528 ahead of stage 3, so, on that basis, I ask him not to press the amendments at this stage.

Tim Eagle’s amendment 223 seeks to reverse the changes that the bill makes to provide that regard is given to the relevant code of practice during arbitration proceedings concerning a small landholding. The provision is equivalent to that for tenant farmers and reflects the expanded scope of the tenant farming commissioner in relation to small landholdings under section 9 of the bill. Ultimately, the amendment would mean that a code of practice would not have the same status in arbitration proceedings relating to small landholders as it would for proceedings relating to tenant farmers.

I was not sure what the rationale behind the amendment was, so I appreciate what Tim Eagle has outlined today. However, I want to clarify that the provision relates to codes in an arbitration context, not an absolute right to buy. However, if he wants to engage in further discussion with me about that, I am more than happy to do that.

I will now turn to Emma Harper’s amendments. Although I understand the reasons behind amendment 501, expanding the group of people who could apply to the TFC requires more consideration in order to assess whether the current procedures for reporting an alleged breach would continue to be suitable. I absolutely recognise the importance of RSABI’s work and its importance to the industry, which has been touched on, including in relation to some of the delicate situations that it has to navigate.

I recognise that the amendment would also appear to enable representative bodies in the sector to report alleged breaches to the TFC in relation to their members or people they might be engaging with. Again, we will have to consider the wider implications of that and any potential unintended consequences. However, I would like to work with the member to explore the issue further and to ensure that the process for reporting breaches meets the needs of those in the sector. I would ask her not to move amendment 501 today.

In relation to amendment 502, I appreciate that some in the tenant farming sector would like to see increased powers for when the TFC finds that a person has not complied with a code of practice. The purpose of the codes of practice is to encourage and promote best practice in how landlords and tenants manage their relationships. However, parties are not required to comply with the terms of a code of practice—it is guidance. That means that there would be significant difficulty with imposing penalties for non-compliance. Any changes to the role of the tenant farming commissioner in that context would need to be considered more widely than solely looking at the question of enforcement. We would have to go through some robust stakeholder engagement as part of the process.

I am happy to commit today to consulting on the role of the tenant farming commissioner in inquiring into and reporting on alleged breaches of codes of practice. Any consultation could consider wider matters, and I would aim for such a consultation to take place and to report before the end of the current parliamentary session. On that basis, I ask Emma Harper not to move amendment 502.

This group relates to the pre-emptive right-to-buy process for small landholders and 1991 act tenant farmers. The changes align the processes for those forms of tenure and make related amendments.

Amendment 225 modifies the right-to-buy measures for secure 1991 act agricultural tenancies and enables a tenant to exercise their right to buy when a landlord takes certain steps with a view to transferring the land and then fails to notify the tenant. The amendment clarifies when the tenant can exercise their right in those circumstances and aligns the position for tenant farmers with the small landholding provisions. The amendment also enables the Scottish ministers to make regulations for the timescales in which a tenant will be required to notify their landlord that they intend to buy the land. Those regulations would be subject to the affirmative procedure.

Amendments 221 and 309 provide for equivalent regulation-making powers in respect of small landholding provisions. Amendment 228 is related to amendment 225 and clarifies the date on which the land is valued in those circumstances. It also makes minor technical changes.

Amendments 224 and 229 make minor and technical changes to the right-to-buy measures for secure 1991 act agricultural tenancies, including the timescales in which an owner must send a copy of the extract of the tenant’s registration of interest to a creditor and any standard security.

Amendment 497 relates to small landholdings and makes a consequential change following on from amendment 488, in the group on small landholdings, which provides that the schedule does not apply to sub-leases. Amendment 497 removes the reference to excluding sub-tenants in the schedule, because it is redundant following the committee’s agreement to amendment 488.

I turn to Tim Eagle’s amendments 222 and 226, which seek to limit the powers in the bill for the Scottish ministers to make regulations for how small landowners and tenants can register their interest in acquiring the land comprised in their tenancy. We consider that the process of registering an interest in land should not be unduly burdensome and should enable transparency for parties who transact with the land. We consider that that is best achieved by working in partnership with stakeholders and Registers of Scotland to develop an improved registration process, and there is support for that from stakeholders more widely.

Amendments 222 and 226 would restrict the ability of the Scottish ministers to develop regulations in a way that meets stakeholders’ needs. The powers in the bill as currently drafted will enable ministers to give effect to an appropriate co-developed process, and the regulations will be subject to the affirmative procedure.

Amendment 218, from Tim Eagle, seeks to limit the ability of the Scottish ministers to update the list of exempt transfers that do not trigger the small landholders’ right to buy, and would require that the list could only be expanded. The power in the bill allows ministers to take into account how the measures are operating in practice—if ministers could only add transfers to the exempt list, that would limit their flexibility to respond to any changing circumstances in the future and to make changes quickly. The power to change the exempt transfer list needs to be sufficiently wide to enable the removal or modification of any transfer on the exempt list in order to ensure that the process operates in a fair and transparent manner. I ask the committee not to support that amendment.

Tim Eagle’s amendment 227 would require ministers to consult

“organisations with an interest in agricultural holdings”

before exercising the power to make regulations regarding the registration of a tenant’s interest under the 1991 act. The power already requires ministers to consult the keeper and the other persons who are

“likely to have an interest in the registration of interests to acquire land.”

Therefore, the consultation would already take place.

Although I do not think that it is necessary, and its wording is not quite right, I am happy to work with Tim Eagle on amendment 227 in advance of stage 3 and I ask that he does not move it today.

I move amendment 497.

That is where those amendments are important. To me, they address exactly that point by bringing the legislation into one place, to consolidate it and modernise it rather than keeping the redundant provisions. I do not agree that we discounted the views of small landholders on the issue, because, ultimately, what we are doing with this set of amendments, and with our amendments in later groups, is aligning all the provisions with the small landholdings and agricultural holdings provisions. I believe that that addresses the points that you raise.

Amendments 508A and 508B, in the name of Tim Eagle, seek to amend those changes to remove indirect damage from the type of game damage that the small landholder is entitled to be compensated for where damage has been caused by game or game management. That would result in the small landholder being entitled to be compensated only for direct damage. We have heard from stakeholders about the significant losses that can be incurred as a result of indirect damage to holdings and that it is important that small landholders and tenants are fairly compensated. That is why I would ask members not to support amendments 508A and 508B.

A fair compensation process that accounts for the damage caused by inadequate game management is needed. There is already extensive guidance that parties and the court can have regard to, including Animal Health and Plant Agency guidance, guidance for the shooting industry on reducing avian influenza disease risk, Scottish Government guidance on the declaration of an avian influenza prevention zone, and the shooting industry’s standing advice on bird flu and game birds. As I have done for tenant farmers and their landlords, I intend to ensure that training on assessing game damage will be made available to small landholders and their landlords in advance of game damage provisions coming into force.

Amendment 510 consolidates and modernises the provisions for small landholders’ security of tenure and the grounds on which they can be removed from the holding. Amendments 506 and 513 concern the parliamentary procedure for regulations that are made under the powers that are provided for in other amendments in the group. Amendment 506 provides that the regulations that are created under amendment 488, which enable the Scottish ministers to vary the upper size threshold for a small landholding or the land that can be taken into account in calculating the size of a holding, are to be subject to the affirmative procedure. Amendment 513 provides that regulations that are made under the compensation for game damage provisions are to be subject to the negative procedure, which is consistent with the equivalent powers for agricultural holdings in section 20.

Amendment 216, in the name of Tim Eagle, relates to the ability of the Scottish ministers to specify by regulations the basis on which a valuer is to assess the compensation payable to a small landholder. The bill simply provides a mechanism for future flexibility, if required, and it sets out that changes would be made by regulations. The amendment would require the Scottish ministers to make regulations for every valuation, even if they were not considered necessary, which I do not think is proportionate for either party. That is why I do not support amendment 216.

Amendment 499 restates an existing provision that limits the ability of parties to contract out of the rights of small landholders under the schedule. Amendment 511 repeals redundant sections of the landholders acts and sets out which areas will continue to apply to small landholdings. Amendments 500, 509 and 512 change various definitions in the schedule, including those of small landholding and cultivation. The other amendments in the group—amendments 509, 512, 491 to 496 and 498—make consequential or minor changes to the terminology used in order to reflect the changes provided for in the other amendments in the group. Combined, the changes have the potential to reinvigorate the small landholding sector and breathe new life into smaller areas that are suitable for new entrants to access. I ask members to support my amendments.

I see that the convener is making eyes at me, as if he wants to intervene.