Salvesen v Riddell – Supreme Court Judgment

Today, the UK Supreme Court handed down its judgment in the agricultural holdings/limited partnership/human rights case of Salvesen v Riddell. The decision of the Court of Session has been upheld. The point of law is not simple, and every time I try to explain it in a snappy manner I get the writer’s equivalent of tongue-tie, so my short explanation is offered with that disclaimer.

Last year the Court of Session held that the upgrade of the general partner of a limited partnership tenant to a “1991 Act” tenant (with security of tenure), in a manner that put the landlord in a worse position compared with other landlords who had not tried to dissolve a limited partnership when what became the Agricultural Holdings (Scotland) Act 2003 was rumbling through Holyrood, was deemed to be in breach of the landlord’s rights under Article 1 Protocol 1 of the ECHR. The Supreme Court has agreed this was a breach of A1P1. A video of Lord Hope pronouncing the decision can be found here.

I have blogged about this case here, here, here, here and here, plus I have an article in the Scots Law Times on the same. Today’s judgment is something of a denouement in terms of blogging material, then, but more importantly it is the conclusion of a test case that has the potential to affect many in rural Scotland’s tenanted farming sector, not to mention the approach the Scottish Parliament will (or should) adopt to legislating in compliance with the Scotland Act 1998 and the ECHR. Constitutional lawyers and property lawyers (and indeed constitutional property lawyers – there is such a thing) will find much of interest in Lord Hope’s 25 page opinion (which the other four Supreme Court judges agreed with).

On the constitutional point, I quote the following nugget from the press summary:

The Court declines to make an order removing or limiting the retrospective effect of its decision on incompatibility. A long period has elapsed since the legislation came into operation, and there are competing rights and interests which will need to be considered, as well as a number of different possible scenarios. Decisions as to how the incompatibility is to be corrected, for the past as well as for the future, must be left to the Parliament guided by the Scottish Ministers following research, consultation with both sides of the industry, and the formulation of proposals for dealing with the situation that respects the parties’ Convention rights. An order will be made under the Scotland Act suspending the effect of this finding for a period that will enable this process to be carried out.

Further thoughts may follow once I have digested all of this.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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7 Responses to Salvesen v Riddell – Supreme Court Judgment

  1. neilking says:

    This may be just a semantic quibble, but I’m not sure it’s true to say that the judgement “has the potential to affect many in rural Scotland’s tenanted farming sector”. Would it not be more accurate to say that there are a finite number (anyone know how many?) of landlords and tenants in the Salvesen-Riddell position where a notice of dissolution of the LP was served on 3/2/02. They will all know who they are and they all now have closure. But there is no “potential” for anyone else to be affected, I don’t think.

    • basedrones says:

      I *think* it is in the hundreds. This is noted in the Court of Session decision from the Official Report.

      “On balance, and after mature reflection, Mr Finnie [the Minister] and I concluded that the appropriate cut-off point that would catch most of the 150 to 200 examples that we have heard about would be 16 September.”

      I have heard a higher finger than that mentioned in the OR, but I can’t source it quickly so I shall not state it. Either way, your quibble is accepted but, with respect, I am not going to change the original wording as over 150 is not an insignificant amount. And it does have the “potential” to affect because the Supreme Court’s order has been suspended, so again I shall respectfully resist that quibble.

  2. neilking says:

    Sorry, Malcolm, I wasn’t suggesting the number was insignificant but rather that it is *finite* and that all the people involved will already know who they are (and will have known for years). There is no lurking unquantifiable potential for harm.

    As for my point about the affected people having closure, I confess I wrote my previous comment before taking on board this business about suspension of the finding pending the Sc Parl deciding how to correct the incompatibility. If you were a general partner who received a notice of dissolution on 3/2/02, is “your” tenancy – as at today’s date – ending or is it not? Or do you have to wait and see how the SP responds now? (Haven’t read the judgement yet. Maybe I should!)

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