Another year, another Martinmas.
As explained in a post roughly a year ago, Martinmas is a traditional date of the Scottish calendar that has some significance in property and rural circles. My post last year was my attempt to explain what was going on when Martinmas 2015 arrived at a farm on the Scottish mainland, namely Colstoun Mains, bringing a complex legal relationship to an end. Once again, Martinmas signals the end of a legal relationship, in this case at Glenree, a farm on the Isle of Arran. There are others in a similar situation, but this farm has become a focal point (see this note in The National and this explanation on Lesley Riddoch’s website).
As lawyers might say when drafting things other than in plain English, my blog post applies in 2016, mutatis mutandis. That is to say, it applies with the necessary changes. Or in other words, it remains relevant (I hope). Those wondering what is happening now should be able to find some insight from that year old post.
To explain very quickly (and as with last year, I have not looked at the documentation) I glean the farmers and landowner here entered into a fixed-term agreement to farm the land via a Scottish limited partnership. This limited partnership model was the industry response to a lack of suitable fixed-term letting vehicle of rural land in Scotland.
The farmers affected this year once again fall into the “no but yes but no” assessment of whether they are tenant farmers.
Why “no but yes but no”?
“No” because at the outset the tenant would have been the limited partnership.
“Yes” because by [defective] law enacted in 2003 the farmer became the tenant outright.
“No” because that law was later struck down and nothing has made the occupants at Glenree tenants in the technical sense of the term since.
This is complicated. The law has not become any easier since Part 10 of the Land Reform (Scotland) Act 2016 hit the statute books. To say the farming industry as a whole is at a crossroads as it awaits full implementation of that legislation (with the added curveball of Brexit to contend with) would be an understatement. To put it lightly.
Situations like Glenree are always difficult to draw wider lessons from. In addition to indulging in Latin, lawyers occasionally note that hard cases make bad law. The micro is undoubtedly challenging here, but what about the macro? Sure, a farming business is coming to a definite end and those involved are facing an uncertain future, but it would also be fair to say landlords are not exactly lining up to let land at the moment, so what steps can be taken that do not tenderise an already tender situation?
With that, I bow out, and indeed cop out. I am not going to offer any solutions. The main point of this blog post is to resurrect my 2015 post and in passing highlight some of the current issues. The Scottish Government has recently announced plans for further new starter opportunities, but there is only so much that can be done with public land. Meanwhile, there are plans to enshrine a right to food into Scots law. If that right to food is going to be sustainable, rural Scotland has to be organised in a way that allows that to happen.