Chamber and committees

Does the cabinet secretary agree that home detention curfews should be used as a tool to reintegrate offenders to their communities, manage the release of individuals from short custodial sentences, and reduce the prison population and reoffending?

I appreciate that it is late, so I will not take up a lot of time. The minister will be aware that I have done a lot of work over the years on the issue of puppies coming through the port of Cairnryan. Will the legislative consent motion help to address that issue? We have been trying to take action on it for many years.

I understand what Mark Ruskell is saying. When I was approached about the amendments and, in particular, about arbitration, the issues of cost, timeliness and dispute resolution often came up. The cabinet secretary is proposing that wider engagement should take place so that we can have an improved process for arbitration and dispute resolution. I am therefore happy not to press amendment 542, which will allow us to do some work to improve the process and engage more widely with stakeholders.

Amendment 542, by agreement, withdrawn.

Before section 28

Amendment 386 not moved.

Section 28 agreed to.

Section 29—Regulation-making powers

Amendments 504, 505, 387, 388 and 521 not moved.

Amendments 506, 309 and 513 moved—[Mairi Gougeon].

I lodged amendments 536 to 539 to enable a more open and transparent rent review process. There is widespread practice of rent being applied without the tenant knowing which other farm was used as the equivalent that the proposed rent is based on or, indeed, whether another comparable farm was used to assess the rent at all. That results in unnecessary delays and expense in agreeing rent, and it delays the outcome of rent reviews in relation to the increase in rent for the occupier of the holding. I take on board what the cabinet secretary has said regarding amendments 537 and 539, however, and I am happy to consider a different form of wording.

Amendments 536 and 538 relate to rent being assessed on the basis of a hypothetical tenant, not the actual tenant who occupies the holding, because a tenant in occupation of the holding could be persuaded to pay rent that was higher than normal. That is sometimes referred to as ransom rent. Tenants might agree to a higher rent in order to avoid the costs of disruption associated with moving to another holding. It is fundamental to ensure that rent is determined on the basis of a hypothetical tenant, not the actual tenant, because that provides an equitable basis for rent review. That is a long-standing principle, so I am keen to move amendments 536 and 538.

On amendments 520 and 521, the issue of arbitration has come up a lot in the discussions that I have had regarding the need to have an easier process of negotiating and coming to agreement when there are disagreements between a landlord and a tenant. Provisions on short-form arbitration and for determining the arbitration process would be made by regulation by the Scottish ministers. I hear what the cabinet secretary said about having wider engagement with stakeholders on the best methods for arbitration. I am keen that we support a more cost-effective, more accessible and quicker dispute resolution mechanism, so I am happy to engage more widely with stakeholders, hear what they think and then come back to the issue.

Good morning. It is good to be here. My amendment 524 might seem like a simple replacement of wording—replacing “or” with “and”—but the drafting of section 20(2) might prevent a tenant from claiming compensation for game damage to crops, including deer damage. Scottish Land & Estates and the Scottish Tenant Farmers Association suggested replacing “or” with “and”, which maintains the current meaning of section 52 of the Agricultural Holdings (Scotland) Act 1991 and maintains fairness for both the landlord and the tenant.

My amendment 518 may be considered a probing amendment. Where there is game damage, it can be assessed and determined by an arbitrator. For example, if the landlord and tenant do not agree regarding the damage, that would go directly to arbitration. The process of direct arbitration and assessment of damage would be more cost effective, accessible, timely and efficient as a means of dispute resolution, instead of proceeding to the Land Court.

My amendment 519 allows the legislation to be flexible, so that the provision of and process for arbitration can be determined based on an assessment of what works and what does not, and any regulations that are made regarding the arbitration would be subject to the affirmative procedure.

My amendments future proof the legislation and support effective, faster, cost-effective dispute resolution.

I understand what Mark Ruskell is saying. When I was approached about the amendments and, in particular, about arbitration, the issues of cost, timeliness and dispute resolution often came up. The cabinet secretary is proposing that wider engagement should take place so that we can have an improved process for arbitration and dispute resolution. I am therefore happy not to press amendment 542, which will allow us to do some work to improve the process and engage more widely with stakeholders.

Amendment 542, by agreement, withdrawn.

Before section 28

Amendment 386 not moved.

Section 28 agreed to.

Section 29—Regulation-making powers

Amendments 504, 505, 387, 388 and 521 not moved.

Amendments 506, 309 and 513 moved—[Mairi Gougeon].

I state for the record that I have had a lot of support from the Scottish Tenant Farmers Association in drafting my amendments.

My final amendment relates to dispute resolution. It would allow arbitration rules to limit the grounds of appeal by adding the following:

“Any appeal against the award of the arbiter is to be to the Court of Session under the provisions of the Scottish Arbitration Rules as set out in ... Schedule 1 to the Arbitration (Scotland) Act 2010.”

The amendment would create a mechanism for dispute resolution by arbitration to be binding, with appeal to the Court of Session possible only on limited grounds, as per the Arbitration (Scotland) Act 2010. I am conscious of time, convener, so I will stop there.

I move amendment 542.

On a point of order, Presiding Officer. I would have voted no.

Thanks, convener. I am pleased to join you. I will speak to amendments 501 and 502, and I thank the cabinet secretary and the team for meeting me to discuss these amendments. It is helpful to be able to explain the purpose and, like Mr Ewing, I have had guidance on my amendments from tenant farming professionals.

Amendment 501 concerns a provision on an application to the tenant farming commissioner to inquire into a breach of the code of practice. I propose to expand the class of persons who can make a complaint to the commissioner when a breach of the code of practice is suspected. At the moment, a tenant farming commissioner can investigate only if a landlord or a tenant chooses to make a complaint. I would like to amend section 29(1) of the 2016 act by inserting:

“(c) is a near relative of a person mentioned in paragraph (a) ... or appears to the Tenant Farming Commissioner to represent the interests of landlords or tenants of agricultural holdings”.

This expansion to the persons who are able to make a complaint would include inserting the language of “near relative”, which means that a near relative could make an application to the tenant farming commissioner to initiate an inquiry into whether there has been a breach of the code of practice. The term “near relative” is defined in agricultural legislation, and I propose to allow ministers to determine the definition of “near relative”—whether that would include parents, siblings, brother-in-law and so on.

Single tenants can be reluctant to make a complaint if relationships are going poorly for the landlord and the tenant, and it is difficult to raise a concern, which can affect a tenant’s and their family’s mental health, which is why I propose adding the wording:

“is a near relative of a person mentioned in paragraph (a)”.

Proposed new paragraph (d) refers to a person who

“appears to the Tenant Farming Commissioner to represent the interests of landlords or tenants of agricultural holdings”.

Concerns are often raised by landlords and tenants—even multiple tenants who share the same landlord. Some tenants and landlords already raise concerns and seek advice from representative organisations, including the NFUS, SLE, the STFA and even the Royal Scottish Agricultural Benevolent Institution. RSABI is a charity with the purpose of supporting farmers, including when support for mental health is a priority.

Expanding the class or type of people or organisations who are able to request the tenant farming commissioner to investigate poor practice or potential breaches of code, including near relatives, would allow the commissioner to step in to resolve issues more directly.

Amendment 502 would modify the 2016 act by inserting:

“Having determined in a report on an inquiry under section 33 that the code of practice has been breached, the Tenant Farming Commissioner may, by notice, impose a fine on the person that committed the breach.”

Examples of breaches that could be resolved by the tenant farming commissioner’s intervention and recommendation, rather than by proceeding to the Scottish Land Court, include disagreements that may be related to game management, management of leases and—

Potentially. At the moment, those complaints may not be raised, so the amendment would give an opportunity for a near relative to raise a concern.