Tenant Farming Commissioner functions: review

Appendix 1: Scottish Government Review of the Functions of the Tenant Farming Commissioner (TFC)

Submission by Bob McIntosh, the Tenant Farming Commissioner

a) Prepare codes of practice on agricultural holdings.

This is an important function of the TFC and 6 codes have been published to date. Each has been extensively consulted upon with the key stakeholder organisations and all have been published jointly with these organisations to ensure buy in and support from key interest groups.

Feedback has been positive, and I am often contacted by landlords, tenants or agents to check whether their proposed actions are consistent with the code or to ask whether the other party is acting in a manner that is consistent with the code. Indications are that the codes are modifying behaviour and helping to avoid conflict. I am often conscious of the fact the codes cannot trump the law. It is sometimes frustrating to be unable to say that something should or should not happen because to do so would be to put the code at odds with what the law allows or forbids but this is perhaps inevitable.

Preparation and publishing of codes is a key function of the TFC and I see no need to change the wording or intention behind this function.

There are many aspects of landlord and tenant relationships, and the associated agricultural holdings legislation, where a code is not necessary but where guidance, and information on particular topics, is helpful to the sector. I have therefore published 11 guides which explain, in layman's terms, the implications of various aspects of the relevant legislation and which provide information on such issues as how to complain about the conduct of an agent and how to better understand different ways of forming relationships between landlords and tenants. These guides are not the subject of the consultation process prescribed for codes, but appear to have been welcomed by the sector.

Strictly speaking, these are not codes and therefore it could be argued that the production of guides is outside the remit of the TFC.

Clarity that the TFC can produce guides, information notes and provide general advice to the sector, in addition to the production of codes would be helpful.

b) Promote the codes of practice.

Section 28 of the Act provides a comprehensive list of ways in which the codes can and should be promoted.

No change to this function required.

c) Inquire into alleged breaches of the codes of practice.

The ability to allege a breach of a code, leading to an inquiry by the TFC, and the publication of a determination, appears to be a powerful driver of compliance. However, while the TFC can impose a fine on anyone unreasonably refusing to provide relevant information to the inquiry, the TFC cannot impose any form of penalty on someone found to be in breach. A fear of being ''named and shamed'' is potentially therefore the only reason for seeking to avoid breaching a code. It has to be accepted, therefore, that it is open to any company or individual to care little about any reputational damage and to ignore any recommendation made by the TFC in a report of an inquiry. This risks negating the value of the ability to allege that a breach has occurred.

I have taken the view that it is unhelpful to the development of good landlord and tenant relationships to have a situation where a dispute leads to a formal allegation of a breach and therefore, rightly or wrongly, where an allegation of a breach becomes a possibility I have attempted to resolve the issue through discussion and mediation. However, the ability to allege a breach remains an important part of the process.

The processes for making an allegation, and for the TFC's handling of the allegation are well covered in sections 29 to 35 of the Act. Until a few allegations have gone through the full process it is difficult to say whether these provisions need any amendment but they seem to be comprehensive and appropriate.

The current function and associated provisions remain relevant but consideration could perhaps be given to providing the TFC with the option of sanctioning, or imposing a financial penalty on, anyone found to have been in breach of a code.

d) Prepare a report on the operation of agents of landlords and tenants.

This report was prepared in accordance with section 36 of the Act. The implication was that this was a one-off report but there is interest in the survey being repeated in the future as a means of monitoring whether the situation has improved.

The function should remain to enable the study to be repeated in the future.

e) Prepare recommendations for a modern list of improvements to agricultural holdings.

This task was completed in accordance with section 37 of the Act but it is expected that the list will require updating again in the future.

The function should remain so that the Scottish Government has the option of asking the TFC to review the list again in the future.

f) Refer for the opinion of the Land Court any question of law relating to agricultural holdings.

This function has not been formally exercised to date but it remains a useful option for the TFC in circumstances where uncertainty over interpretation of relevant legislation has implications for a significant number of people. It should not be used to enable an individual to gain access to free legal advice.

Though not yet exercised, the function is relevant and should remain.

g) Collaborate with the Land Commissioners in the exercise of their functions to the extent that their functions relate to agriculture and agricultural holdings.

There are a number of areas where the interests of the TFC and the Land Commissioners overlap. Since the TFC is a member of the Land Commission, and the staff supporting the TFC are employees of the Land Commission, it has not proved difficult to maintain effective communication and collaboration.

This function is important and should remain

h) Exercise any other functions conferred on the Commissioner by any enactment.

This has not been an issue to date but it remains a relevant function.

Other Issues

The functions of the TFC are intended to improve relationships between landlords and tenants of agricultural holdings. It is becoming increasingly clear the conventional landlord/tenant arrangement is but one of a number of ways in which those wishing to farm, but have no land, can enter into an arrangement with those with land but who do not want to farm. The Land Commission and the TFC have been active in developing and promoting alternatives to the conventional model, such as joint ventures and business partnerships. Since these arrangements are becoming more common, and will undoubtedly give rise to the same difficulties and disputes inherent in the landlord/tenant model, there is a case for extending the role of the TFC to allow the functions to be exercised in relation to these other types of business relationships.

Summary

1. All of the current functions remain relevant and should be retained.

2. Consideration should be given to extending the role of the TFC to cover other types of business arrangements affecting agricultural holdings.

3. Clarification should be sought as to whether the current provisions in the Act support the role of the TFC in producing guides, information notes and the giving of general advice to landlords, tenants and agents.

4. Consideration should be given to enabling the TFC to impose some form of penalty or sanction on anyone found to be in breach of a code.

Dr Bob McIntosh
Tenant Farming Commissioner

29^th January 2020