Tenant Farming Commissioner functions: review

Executive Summary

This report is a statutory review of the functions of the Tenant Farming Commissioner. The Tenant Farming Commissioner was established by the Land Reform (Scotland) Act 2016 which took effect on 1 April 2017. Section 24 (3) states that Scottish Ministers must review the Tenant Farming Commissioner's functions before the end of the period of three years from which the Act took effect.

The Tenant Farming Commissioner and relevant stakeholders were invited to give their views on the operation of the Tenant Farming Commissioner's functions and on whether the Commissioner's powers are sufficient. An online survey, which ran between 20 January 2020 and 3 February 2020, received 36 responses. The current Tenant Farming Commissioner, Dr Bob McIntosh, submitted a written response to the review (see Appendix 1).

One of the main functions of the Tenant Farming Commissioner is to prepare and promote codes of practice on agricultural holdings for the purpose of providing practical guidance to landlords and tenants of agricultural holdings and their agents. The Tenant Farming Commissioner has published six codes of practice which have been successfully promoted to the tenant farming sector. Respondents consider them easy to understand, useful, fair and robust and it is thought that they will improve relations between tenants and landlords. The Tenant Farming Commissioner has received positive feedback on the codes from tenants, landlords and agents.

The Tenant Farming Commissioner must inquire into alleged breaches of the codes of practice. The Commissioner does not, however, have power to impose financial penalties or other sanctions on parties found in breach of the codes of practice. Many respondents, including the Tenant Farming Commissioner, noted the impact that this may have on compliance. They argue for the introduction of statutory powers which would allow the Commissioner to fine or sanction parties found in breach of the codes of practice. This would bring reassurance to tenants and landlords who raised concerns about the expense of bringing cases before the Land Court.

Both the Tenant Farming Commissioner and the majority of respondents indicated that all of the current functions of the Commissioner should be retained. Many respondents noted that, given the recency of the Land Reform (Scotland) Act 2016, it is too soon to determine what changes are needed to the functions. It is thought that more time is needed to become accustomed to the role of the Tenant Farming Commissioner before any changes are made.

Nevertheless, a number of amendments and/or extensions to the functions were suggested. These suggestions form the basis of the report's recommendations. The recommendations are as follows:

1. To foster compliance with the codes of practice, the Tenant Farming Commissioner should be granted the authority to sanction and impose financial penalties on anyone found to have been in breach of the codes of practice.

2. To continue the delivery of additional guides and information for landlords, tenants and agents, the provision and promotion of guidance, information and advisory documents should be added as a function of the Tenant Farming Commissioner.

3. To keep pace with the changing nature of the business arrangements of agricultural holdings, ministers should consider extending the remit of the Tenant Farming Commissioner to include alternative business arrangements, such as joint ventures and business partnerships.

4. To further encourage good relations among landlords and tenants of agricultural holdings and their agents, the Tenant Farming Commissioner may adopt the additional function of providing mediation services where the relationship between tenants, landlords and agents has deteriorated but codes of practice have not necessarily been breached.

5. Where not already happening, the Tenant Farming Commissioner should be consulted on matters of land reform and agricultural tenancy.