Petition Of R A Mcmaster And Others Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Menzies,Lord President |
| Neutral Citation | [2018] CSIH 40 |
| Date | 12 June 2018 |
| Docket Number | P321/15 |
| Court | Court of Session |
| Published date | 12 June 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 40
P321/15
Lord President
Lord Menzies
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the petition of
R A McMASTER AND OTHERS
Petitioners and Reclaimers
against
THE SCOTTISH MINISTERS
Respondents
for judicial review of (one) the actings of the Scottish Ministers in making The Agricultural
Holdings (Scotland) Act 2003 Remedial Order 2014; and (two) the decision of the Scottish
Ministers not to pay compensation to the petitioners in respect of the loss, injury and
damage sustained by them as a consequence of the making of the said 2014 Order
Petitioners and Reclaimers: Sir Crispin Agnew of Lochnaw QC, Blai r; Davidson Chalmers LLP
Respondents: Mure QC, Ross QC; Scottish Government Legal Directorat e
12 June 2018
[1] The petitioners are six limited partnerships that carry on the business of farming on
tenanted land, together with the general partners of those partnerships. They have raised
proceedings for judicial review against Scottish Ministers, in which they claim that they
have suffered loss in consequence of the making by Scottish Ministers of the Agricultural
2
Holdings (Scotland) Act 2003 Remedial Order 2014 (the “Remedial Order”). It is alleged
that the making of the Remedial Order without express provision for the assessment and
payment of compensation to the petitioners was in breach of the petitioners’ rights under
article 1 of the First Protocol to the European Convention on Human Rights, and was
accordingly outwith the powers of Scottish Ministers or the Scottish Parliament in terms of
section 57(2) of the Scotland Act 1998.
History of the Remedial Order
[2] In general terms, the background to the petitioners’ claims is as follows. The
Agricultural Holdings (Scotland) Act 1948 conferred statutory security of tenure for an
indefinite period on agricultural tenants, and the relevant legislation was re-enacted and
consolidated in the Agricultural Holdings (Scotland) Act 1991. Far-reaching security of
tenure was perceived as a problem by the owners of agricultural land, and it became
common practice for landowners to circumvent security of tenure by granting leases of
farms to limited partnerships in which one of the limited partners was an agent of the
landlord, the general partner being the individual in charge of the farming operations. The
limited partner was able to dissolve the partnership by giving the stipulated period of
contractual notice. In this way the statutory security of tenure was rendered ineffective
because, following the dissolution of the partnership, there was no tenant and the lease
necessarily came to an end. The validity of such arrangements was upheld by the Court of
Session in MacFarlane v Falfield Investments Ltd, 1998 SC 14. A detailed account of the history
of the legislation and the use of limited partnerships to avoid the effects of security of tenure
is found in the opinion of the Lord Justice Clerk in Salvesen v Riddell, 2013 SC 69, at
paragraphs [7] et seq.
3
[3] In MacFarlane v Falfield Investments Ltd, supra, it had been submitted that the use of
limited partnerships was contrary to the public interest, and that the statutory security of
tenure for agricultural tenants should be protected. While that argument was rejected by
the court, it came to be recognized that there was a need for a new statutory structure for
leases of agricultural land; in particular it was recognized that what was required was a
system that could offer security of tenure to the tenant but which gave the landlord the
prospect of recovering vacant possession at the end of a fixed term agreed at the outset of
the lease. Proposals to that effect were put forward in a White Paper published by the
Scottish Executive in May 2000, Agricultural Holdings – Proposals for Legislation. It was
proposed in particular that it should be possible to create a new form of limited duration
tenancy, and that correspondingly it should no longer be possible to create new tenancies in
favour of limited partnerships. The White Paper formed the background to the Agricultural
Holdings (Scotland) Act 2003.
[4] Under that Act, the standard form of tenancy is the new limited duration tenancy, as
provided for in section 1. It remained competent, however, to create a tenancy that was
subject to the provisions of the 1991 Act (referred to as a “1991 Act tenancy”: section 1(2) and
(4)). The Act made express provision for leases in favour of partnerships. Section 72 dealt
with the rights of the parties where a lease had been granted in favour of a limited
partnership. That section operated in the context of section 70, which applied to leases
where the tenant was a partnership and one of the partners was the landlord or the
landlord’s associate and there was another partner; in such cases if the landlord attempted
to terminate the tenancy, by dissolving the partnership or otherwise, any partner not
connected with the landlord might give notice under section 70(6), which had the effect that
the party giving the notice became tenant in his own right. In this way the use of a limited
To continue reading
Request your trial