Introduction

The case of Salvesen and Riddell & Anor v. The Lord Advocate (Scotland) ([2013] SLT 863) addresses the compatibility of Section 72 of the Agricultural Holdings (Scotland) Act 2003 with the European Convention on Human Rights (ECHR), specifically Article 1 of the First Protocol (A1P1) and Article 14 of the Convention. The appellants, Alastair Salvesen and the Riddell partners, challenged the provisions that affected the termination of agricultural tenancies held by limited partnerships, arguing that these provisions infringed their property rights under the ECHR. This commentary explores the background, legal reasoning, and implications of the Supreme Court’s judgment.

Summary of the Judgment

The Supreme Court upheld the decision of the Second Division of the Court of Session, which found that Section 72(10) of the Agricultural Holdings (Scotland) Act 2003 was incompatible with the appellants' rights under A1P1 of the ECHR. The Court concluded that this section was discriminatory and lacked a reasonable relationship of proportionality between the means employed and the aims pursued by the legislation. Consequently, Section 72(10) was deemed outside the legislative competence of the Scottish Parliament under the Scotland Act 1998.

Analysis

Precedents Cited

The judgment referenced several key precedents that influenced the Court’s decision:

• MacFarlane v Falfield Investments Ltd (1998 SC 14) – highlighted the court's reluctance to interfere with policy decisions unless there is a clear violation of public interest.
• Barreto v Portugal (1995) and Spadea v Italy (1996) – underscored the Court of Human Rights’ stance on property rights and state interference.
• James v United Kingdom (1986) and Mellacher v Austria (1990) – established the principles of proportionality and fair balance between public interest and individual rights.
• Sporrong v Sweden (1983) and Lindheim and others v Norway (2012) – emphasized the necessity of proportionality in state measures affecting property rights.
• Ghaidan v Godin-Mendoza (2004) and Wilson v First County Trust Ltd (2003) – provided guidance on interpreting legislation compatibly with Convention rights.

Legal Reasoning

The Court employed a multi-faceted approach to assess the compatibility of Section 72(10) with A1P1:

• Legislative Competence: Under Section 29(1) of the Scotland Act 1998, the Court evaluated whether Section 72(10) was within the legislative competence of the Scottish Parliament. It concluded that the section exceeded competence due to its incompatibility with Convention rights.
• Proportionality and Fair Balance: Applying the principles from James v United Kingdom and Mellacher v Austria, the Court examined whether the legislative measures struck a fair balance between the general interest and the protection of individual property rights. It found that Section 72(10) disproportionately disadvantaged landlords without adequately serving a legitimate public interest.
• Discrimination under Article 14: The Court determined that Section 72(10) was discriminatory as it treated landlords unfairly compared to general partners, violating the non-discrimination clause of Article 14.
• Retrospective Legislation: The Court considered whether Section 72’s retrospective application was permissible. While retrospective legislation is not inherently incompatible with A1P1, its application in Section 72(10) imposed excessive burdens on landlords without sufficient justification.
• Compatibility with Convention Rights: The Court concluded that Section 72(10) could not be interpreted in a manner that would render it compatible with A1P1, as its effects were too punitive and arbitrary.

Impact

The judgment has significant implications for agricultural tenancies in Scotland:

• Landlords’ Property Rights: Landlords previously subject to Section 72(10) provisions may seek remedies to reverse the discriminatory effects, potentially restoring their rights to terminate tenancies without undue restrictions.
• Legislative Reforms: The Scottish Parliament may need to amend the Agricultural Holdings Act to align with human rights obligations, ensuring that future legislation does not infringe on property rights.
• Precedent for Devolution Issues: This case reinforces the judiciary’s role in scrutinizing the legislative competence of devolved parliaments, especially concerning human rights compliance.
• Future Litigation: Other provisions within the Agricultural Holdings Act or similar legislation may be subject to review, promoting a broader assessment of compatibility with the ECHR.

Complex Concepts Simplified

Limited Partnership Tenancy

A limited partnership tenancy in agricultural holdings involves a partnership where general partners manage the farm, and the limited partner typically holds ownership interests. This structure offers landlords flexibility in lease durations but has been criticized for reducing tenants' security of tenure.

Security of Tenure

Security of tenure refers to the legal protections that ensure agricultural tenants can remain on the land for extended periods, safeguarding them against arbitrary termination by landlords.

A1P1 of the ECHR

Article 1 of the First Protocol to the ECHR protects individuals' property rights, ensuring peaceful enjoyment of possessions and stipulating that deprivation of property must be in the public interest and follow legal procedures.

Article 14 of the ECHR

Article 14 prohibits discrimination in the enjoyment of Convention rights, ensuring that all individuals receive equal protection without discrimination based on various grounds, including property ownership.

Proportionality

Proportionality is a legal principle requiring that measures affecting individuals' rights must be suitable to achieve a legitimate aim, necessary in the least restrictive manner, and balanced in terms of impact versus benefit.

Legislative Competence

Legislative competence refers to the authority of a legislative body, such as the Scottish Parliament, to enact laws within its defined powers. Exceeding these powers can render legislation invalid.

Conclusion

The Supreme Court's decision in Salvesen and Riddell & Anor v. The Lord Advocate (Scotland) underscores the judiciary's role in ensuring that legislation respects fundamental human rights as enshrined in the ECHR. By declaring Section 72(10) of the Agricultural Holdings (Scotland) Act 2003 incompatible with A1P1, the Court emphasized the necessity for a fair and proportional balance between landlords' property rights and legislative aims. This judgment not only impacts the specific provisions of the Act but also sets a precedent for future legislative evaluations, promoting adherence to human rights standards within devolved legal frameworks. Moving forward, the Scottish Parliament must carefully consider these findings to reform agricultural tenancy laws, ensuring they align with both domestic and international legal obligations.