Tenant Farming Commissioner functions: review

3. Codes of Practice

Section 24 (1) or the Land Reform (Scotland) Act 2016 states that the Tenant Farming Commissioner must prepare codes of practice on agricultural holdings to provide practical guidance to landlords and tenants of agricultural holdings and their agents.

The codes of practice may include, among other things, provision about:

• Negotiating and conducting rent reviews;
• Agreeing and recording improvements by tenants;
• Negotiating the fulfilment of the obligations of landlords and tenants;
• The conduct of agents of landlords and tenants;
• The process of succession and assignation;
• Determining compensation at waygo;^[1]
• Negotiating the terms of a modern limited duration tenancy and a repairing tenancy;
• The management of sporting leases; and
• Game management

The Tenant Farming Commissioner must, from time to time, review the codes of practice and revise the codes if the Commissioner considers it appropriate.

Before the Tenant Farming Commissioner publishes a code of practice, they must consult any persons appearing to have an interest in the draft code. Only then can the code of practice be published, in such a form that the Commissioner considers appropriate, and a copy laid before the Scottish Parliament.

To date, six codes and nine guidance publications have been published.

Consultation with stakeholders shows that 91% of respondents agree or strongly agree that preparing codes of practice should be a function of the Tenant Farming Commissioner. Respondents have found the codes of practice easy to understand, useful, unbiased, robust and fair. It is thought they will improve relations between tenants and landlords. As one respondent said:

'The codes of practice have been a significant step forward in terms of improving relationships between landlords and tenants. To remove this function would lead to rapid deterioration of behaviour in the sector.'

The Tenant Farming Commissioner, Dr Bob McIntosh, agrees that the codes of practice are an important function. He explains, in his response to the review, that the codes of practice were produced after extensive consultation with key stakeholder organisations. Dr McIntosh has received positive feedback on the codes from landlords, tenants and agents and is often contacted for advice on issues covered by the codes. He feels that the codes have, thus, been successful in '...modifying behaviour and helping to avoid conflict'.

As can be seen in Table 2, 61% of respondents agree or strongly agree that the Commissioner has sufficient powers to prepare codes of practice. 25% disagree or strongly disagree. The main reason for this is that codes of practice are not legally enforceable. As one respondent stated, 'while it is a function of the TFC his codes are voluntary. He needs to have statutory powers to enforce the codes'. Respondents want the Tenant Farming Commissioner's powers to be extended to ensure that land owners abide by the codes of practice. They do not feel confident that there is the necessary "buy in" from all parties and observance is, thus, reliant on the decisions of individuals rather than law.

The Tenant Farming Commissioner must also promote the observance of the codes of practice, including by:

• Educating and advising about the codes;
• Supporting best practice in accordance with the codes among landlords and tenants of agricultural holdings and their agents;
• Encouraging good relations among landlords and tenants of agricultural holdings and their agents;
• Working in collaboration with other persons (whether in partnership or in other ways);
• Contributing to the development and delivery of policies and strategies in relation to agricultural holdings.

As can be seen in Table 3, 97% of respondents agree or strongly agree that promoting the observance of the codes of practice should be a function of the Tenant Farming Commissioner.

As can be seen in Table 4, 56% of respondents agree or strongly agree that the Tenant Farming Commissioner has sufficient powers to promote the observance of the codes of practice. 15% strongly disagree.