Meeting of the Parliament 16 March 2016
It is quite clear that the cabinet secretary and I—and possibly other members—have what I fear to be an irreconcilable difference over this issue. My belief is that the introduction at stage 2 of the ability of a 1991 act tenant to relinquish his or her tenancy and assign it for value has ensured one certain outcome: that the bill cannot deliver at least one of its policy objectives—that of increasing the amount of land that is available to rent in Scotland.
The bill as it stands will, I believe, do the exact opposite. That is because, first, any landlord who can afford it will almost certainly take the opportunity to buy out the lease when it is offered for relinquishment, at however unfair a price it may be. Secondly, no one with land available to let will let it on any kind of long-term or even short-term basis from now on. Welcome to the age of contract farming.
I still do not understand how the cabinet secretary can pursue a measure that fails to meet that policy aim of the bill—which was specifically ruled out by the review group that he chaired himself—on the grounds that it was not in the public interest.
It is telling: we might well expect Scottish Land & Estates to support my position on this matter; I find it interesting that the National Farmers Union Scotland does, too. The NFUS does so, as it has stated, because it simply does not see any benefit to agriculture from the proposed measure.
Instead of pursuing the agricultural holdings legislation review group’s vision of gradually allowing 1991 act tenancies to be replaced with more modern letting vehicles, the Government has chosen to mothball secure tenancies for evermore. The conversion model that was being progressed through the stakeholders group had a very real chance of changing things for the better, but that prospect has been well and truly torpedoed.
It is clear that relinquishment and assignation will soon become part of our legislation. My amendments 127 and 128 seek to restore a measure of balance, while helping to achieve the policy aims of the bill, by inserting an alternative new part 3A into the 1991 act, which contains four main differences from the existing new part 3A proposed by the bill.
First, my new part 3A would, as the cabinet secretary pointed out, restrict those who can use the measure to tenants seeking to retire. That would surely better target the policy to those it is seeking to assist.
Secondly, my proposals would introduce a new process by requiring the tenant to serve a notice to assign, which would include details of both the proposed assignee and the amount payable by that assignee. The landowner would then have an effective right of pre-emption to match that sum and buy out the lease.
Thirdly, the assigned lease would remain as a 1991 act tenancy for a period of up to 25 years, after which, as the cabinet secretary pointed out, the tenant could be served a notice to quit. That would allow the agricultural holdings legislation review group’s vision of secure tenancies slowly dying out to be realised without engaging the possible ECHR implications of allowing them to continue indefinitely.
Finally, the amount that is paid by the landowner in matching the assignee’s offer would be deemed to include compensation for tenants’ improvements, as the assignee would already have taken that into account. Any other approach would involve double accounting.
I believe that the adoption of my amendments 127 and 128 would bring about a more balanced and fairer approach to relinquishment and assignation and that it would bring the bill closer to achieving one of its policy aims. It would also reduce the very likely possibility of the legislation being challenged in the courts, as I warned about at stage 2 and very much fear will happen. If we cannot bring a more balanced approach to this part of the bill, I fear that we will have to watch from the sidelines as the tenanted sector falls apart.
Before I move on, I want to support strongly amendments 129 and 130 in the name of Jim Hume. I totally oppose manuscript amendment 140. I cannot understand why the Government suddenly considers it necessary to make what I see as very sweeping changes at such a late stage, even if the provisions are to be subject to the affirmative procedure.
Given that many other amendments in the group clearly define the valuation procedure, I am at something of a loss as to the sudden desire to virtually negate them via amendment 140, which gives no indication of either when or why the powers would be exercised. The cabinet secretary will no doubt smile, but to introduce an extensive power without either consultation or scrutiny says a great deal about the Government’s approach to the legislation. It will not receive the support of Conservative members.