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.