Salvesen v Riddell is an important case, not just for those immediately involved with the dispute or indeed for those involved in Scottish agriculture more generally. I have blogged about it before. It relates to a not uncomplicated reform in the Agricultural Holdings (Scotland) Act 2003, which (grossly oversimplified) purported to promote a general partner of a limited partnership farm business up to the status of a “1991 Act tenant”, i.e. a tenant with all the bells, whistles and security of tenure a tenancy governed by the Agricultural Holdings (Scotland) Act 1991 provides. The Court of Session decided that this provision, amounting to an unjustified control of the landlord’s use of the land, was in breach of Article 1 Protocol 1 of the ECHR and therefore outwith the legislative competence of the Scottish Parliament.
As noted by this blogger, the case has been appealed to the UK Supreme Court. The advocate Bryan Heaney has added his welcome analysis to the dispute that faces the supreme court at the UK Supreme Court Blog in a “Case Preview”, which is well worth a look.
Rather unfairly, I am about to skim over all his other analysis and skip straight to his last paragraph, which reads as follows:
It is difficult to know how the Supreme Court will treat this case. There is no live dispute between the original parties to the action. Nevertheless, the Supreme Court might feel that it has to deal with the case to put an end to any uncertainty. To me, it appears that Lord Gill’s characterisation of the purported justifications was moderate. To my mind, the difference in regime was the result of politicking to demonstrate that the Labour government and SNP opposition were united in punishing rich landlords who, with their expensive lawyers, were doing down poor tenant farmers. This was calculated to play to the SNP’s rural constituents and also to the unreconstructed crypto-Marxist element in the Labour party. But maybe the Supreme Court will see it differently and decide the measure was objectively justified and proportionate.
I might add two quick thoughts to his analysis. One relates to the observation that there is “no live dispute between the original parties to the action.” I have documented why this might be the case on this blog. It may be that an explanation of that circumstance would have moved the UKSC blog away from the pure legal analysis, so my first thought is not meant as a criticism of the new blog, more as a quick clarification.
My second thought relates to the apparently “moderate” characterisation of the reform by Lord President Gill (as he now is). This is fascinating stuff. How will the Supreme Court view the legislation of the Lib/Lab coalition? And that is perhaps my one criticism of the blog. I am not sure quite why the SNP and Labour get a mention but the Lib Dems do not: after all, it was a Lib/Lab coalition that passed the 2003 Act.
Be that as it may, the Lord Advocate (operating in a climate where we have an SNP majority at Holyrood) has taken up the challenge of trying to protect the legislation of a previous administration. That action can be well and truly separated from any pandering to unreconstructed crypto-Marxists by any political party. The opinions of the legal minds in the (UK) Supreme Court on the standing of the legislation will (hopefully) add much to the analysis in the lower courts, make clear exactly what the Scottish Parliament can do and might (just maybe) give a new lease of life to the agricultural lease reforms that the Court of Session struck down, but if they were to do that they would need to overturn a very detailed judgment handed down by a well-known expert in agricultural law. I am not a gambling man, so forgive me for not calling how this one might go.