Seòmar agus comataidhean

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.

I am happy to, convener. The amendments in my name in this group reflect the commitment that I made at stage 1 to clarify proposed new schedule 5 to the Agricultural Holdings (Scotland) Act 1991, following the range of evidence and information that was provided by tenant farming stakeholders.

Amendment 287 seeks to remove new part 4 of schedule 5 to the 1991 act, which contains a list of improvements that facilitate or enhance sustainable regenerative agricultural production. Amendments 282 to 285 seek to modify parts 1 to 3 of the schedule to rehome the improvements that were included in part 4, which will now be included in the illustrative lists for which the consent of the landlord is required or of which the tenant may be required to notify the landlord.

I support Ariane Burgess’s amendment 286, which seeks to add to part 3 of the schedule two of the improvements that were listed in part 4.

Amendment 271, 275, 276 and 277 seek to modify the provisions on the Scottish Land Court’s determining whether to approve a proposed improvement following the removal of part 4 of the schedule. The court will still be required to consider whether an improvement is likely to facilitate or enhance sustainable or regenerative agricultural production. The corresponding improvements will be set out alongside those provisions rather than in part 4 of schedule 5.

Amendments 272, 273 and 274 seek to set out the process for notifying a landlord or obtaining their consent to carry out an improvement. The changes include requiring the landlord to provide written reasons to the tenant when they have not agreed on the terms of consent for a proposed improvement, or when they object to a proposed improvement following notification by a tenant.

Amendments 268 to 270, 271, 275, 278, 279, 281 and 288 are minor consequential amendments, which relate to those that I have already discussed.

I hope that members will support my amendments.

I turn to Tim Eagle’s amendments. Amendment 544 sets out a statutory process for the landlord to request further information from the tenant about a proposed improvement for which the landlord’s consent is sought—including the timeframe for responding and the effect of failing to do so. That would add unnecessary complexity to the process and place an unreasonable burden on the tenant to respond to a further request for information.

Amendment 535 would permit the landlord to notify the tenant that they will carry out on the tenant’s behalf improvements required by enactments or by the lease. That could have an effect on the rental value, because improvements that are paid for by the landlord are included in rental calculations.

I understand the issue that amendments 544 and 535 are trying to resolve, but what they propose needs further consideration and discussion with the industry. I am not sure that the bill is the right place for what they are trying to do. That would be something for future legislative change, because the range of unintended consequences needs to be fully considered, given the interface of amendment 535 with not only the houses on a tenancy but the rental values of tenancies.

Amendment 276A seeks to modify the list of matters that the Scottish Land Court must consider when it is deciding whether to approve the carrying out of an improvement. The list would include whether sufficient information has been provided to the landlord to enable them to make an informed decision, in line with the new duty that Tim Eagle seeks to create in amendment 544. The Scottish ministers already have the ability to prescribe the information that a tenant’s notice must include. However, there might be cases in which, for various reasons, less information is available. Ultimately, it is in both parties’ interests to provide sufficient information in relation to a proposed improvement, given that the tenant will be seeking the landlord’s consent or hoping that they do not object following a notice. Therefore, I do not think that amendment 276A is necessary.

Amendment 280 seeks to require that the affirmative procedure be used to alter the illustrative activities for the non-exhaustive lists for parts 1 and 2 of new schedule 5 to the 1991 act, and to add any activities to part 3.

In my response to the stage 1 report, I confirmed that we are

“committed to working closely with stakeholders before bringing forward any changes that might be helpful for the sector.”

However, there are technical issues in relation to the drafting of the amendment, and it fails to make a necessary consequential change.

Amendment 540 would restrict the ability of a tenant to object to a proposed improvement detailed in a landlord improvement notice under section 14A, which would mean that a tenant would be prohibited from objecting to an improvement if it related to an item of fixed equipment that was considered by the landlord

“to be an economic requirement for the purposes for which the farm is let”

and the landlord has given the tenant the opportunity to relinquish the item. A tenant would not be entitled to compensation if an item of fixed equipment was relinquished in such circumstances.

Amendment 540 is a significant amendment that would have a range of potential unintended consequences that would place financial burdens on tenants, and there would be no ability to recover costs if the item was relinquished.

Accordingly, I ask members not to support Tim Eagle’s amendments in this group.

I move amendment 268.

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.

I do not have anything further to add, convener.

Amendment 497 agreed to.

Amendment 218 moved—[Tim Eagle].

I realise that amendment 379 follows similar amendments that we have discussed previously. Although the matter is of interest in my constituency, I make it clear that I am appearing before the committee today in my capacity as a minister of the Scottish Government. The position that I am presenting reflects the collective view of the Scottish Government and concerns a matter of law and policy for which I have ministerial responsibility. Separately, and in line with the Scottish ministerial code, I have made my views and those of my constituents known to the responsible minister in the appropriate way. The issue that is under discussion today is distinct from that constituency interest, and my contributions should therefore be understood as reflecting the Government’s position, not a personal or constituency-specific stance.

As members will be aware, the powers to legislate for the generation, transmission, distribution and supply of electricity are reserved in the Scotland Act 1998. Although I completely understand the concern that tenants might have about electricity infrastructure, amendment 379 is beyond the legislative competence of the Scottish Parliament and, accordingly, I urge members to oppose it.

Yes, it would.

Yes.

The purpose of the amendments in this group is to update the assignation and succession provisions for tenant farmers so that they align with the small landholdings provisions in the bill and to make a number of related and minor changes for clarity.

The main amendments in the group, amendments 230, 233, 305, 306 and 308, update the descriptions of the people to whom a lease under the 1991 act or the 2003 act can be assigned or passed in a person’s will. Those amendments make related changes to the definition of “near relative” across the assignation and succession provisions applying to tenant farmers, to reflect the updated descriptions.

The amendments also make procedural and technical changes, including the alignment of timescales in which a landlord can intimate that they are withholding their consent or are objecting to a proposed new tenant with those for small landholdings and the requirement that a person who succeeds a lease in a succession scenario must specify their relationship to the deceased tenant in order to help determine whether the person is a near relative. Those changes align the provisions for those forms of tenure with those in the bill for small landholders.

Amendments 208, 210, 212, 215 and 306 modify the succession provisions for small landholders and tenant farmers regarding the date on which the tenancy applies to an incoming small landholder or tenant following an objection by the landlord. Under the current provisions, those dates are inconsistent in relation to intestate scenarios and where the landlord objects to the person becoming the new tenant or small landholder. The amendments clarify and align the positions for both small landholders and tenant farmers.

Amendment 307 modernises the language in section 12C of the Agricultural Holdings (Scotland) Act 1991 to reflect the equivalent provisions for small landholdings in the schedule. The other amendments in the group are mainly minor. They are consequential or technical changes to the small landholdings or tenant farming provisions.

Amendments 184 to 205 and 213 make minor drafting changes. As you will probably be relieved to hear, the majority of those just make a grammatical change to the small landholdings provisions.

Amendments 206, 207, 209, 211 and 214 are minor drafting changes to the small landholdings provisions, amending references to “tenant” to “small landholder” for consistency with other parts of the schedule.

With that, I hope that the committee can support the amendments in my name in this group.

I move amendment 184.

Amendment 184 agreed to.