The Scottish Government has intimated that the Remedial Order required to remedy the “bad” law in terms of the Supreme Court ruling in Salvesen v Riddell would be signed by the Cabinet Secretary on 2 April and would become law on 3 April 2014. The Scottish Government press release is available at http://news.scotland.gov.uk/News/Land-tenancy-order-b10.aspx
This legislation was required to remedy section 72(10) of the 2003 Act following the Supreme Court judgement in April 2013 which confirmed that the relevant subsection infringed the rights of the landlord under the European Convention of Human Rights.
Scottish Land & Estates has been fully engaged with the Scottish Government during the period following the Supreme Court ruling. Written and verbal evidence was given to the Rural Affairs, Climate Change and Environment Committee and meetings and dialogue continue with officials who are considering the mediation model which will be available, at the expense of the Scottish Government, to assist in any cases where both parties consider there is merit in exploring alternative remedies.
Many of the issues raised by Scottish Land & Estates with Scottish Government and with the said Committee have not been included in the Remedial Order. It is of considerable importance that, in cases where any members believe that they have been affected by the defective law, prompt specialist legal advice is taken on:
- Any remedies which may be available,
- Whether the proposed mediation route is worth exploring,
- Whether there may be a potential claim for compensation against the Scottish Government for financial loss incurred, and
- Whether there are relevant time limits within which such claims must be made.
An Information Sheet on the main issues contained in the Remedial Order will be available in due course, but we await details of both the proposed mediation model and the plain English guide which the Scottish Government has undertaken to provide. We stress that each case will have its own unique set of circumstances and it will not be appropriate for generic advice to be given to members on this complex area of agricultural law.
We would like to place on record our thanks to the members of our agricultural holdings technical working group for their assistance during the passage of this Remedial Order.