BACK in November, brothers John and Ian Paterson were forced from the land they had lived on and farmed for two decades. They were, in effect, evicted, with little compensation because of the faulty law passed in 2003.

The Patersons, like other tenant farmers, thought the Agricultural Holdings (Scotland) Act passed in 2003, converted their original lease into a secure and lasting tenancy. They built sheds, put up hedging and fencing, bought farming equipment and settled down. John had hoped to pass the farm on to his son. Then in 2013, the UK Supreme Court ruled that the 2003 law breached the human rights of landowners.

The Patersons never blamed their landlord, but rather the Labour-Lib Dem government who passed the flawed law, and the SNP who promised compensation which has not yet appeared. Cabinet Secretary for Rural Economy Fergus Ewing has written for The National today, in a bid, he says “to correct a few misunderstandings about the current situation and history of tenant farmers”. Angus McCall from the Scottish Tenants Farmers Association responds.

Fergus Ewing, Cabinet Secretary for the Rural Economy: ‘We can’t pay out taxpayers’ money unless there is a legal liability to do so’

'A LOT has been said and written in recent weeks over the situation of the Paterson family, who have had to leave their home and farm on Arran. Clearly this has been a very stressful time for them and it’s easy to imagine how difficult this must be for them.

The fact that we are dealing with families and livelihoods has been very much at the forefront of my mind. That is why I have done and continue to do everything I can, and everything this Government can do, to find ways within a hugely complex and difficult situation to support the family and other tenant farmers who find themselves in this situation.

Tenant farmers play a key role in farming and food production and I am committed to continuing to support, encourage and enable them to make a vital contribution to our rural economy. Building on our record of support and of passing legislation to improve their lot, in this parliamentary session, measures will be taken to improve the rent review system and to enable assignation of secure 1991 Act agricultural tenancies.

The Scottish Government is also funding mediation between those tenant farmers who raised legal action against Scottish Ministers challenging the Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014 (the “Remedial Order”) and their landlords at the taxpayers’ expense. That offer has been taken up by a number of those affected, including the Patersons, where we will pay for the costs of mediation for both parties, up to a ceiling of £13,000 per party. Affected tenants and landlords can decide to use the service at any point until September 30, 2018.

This mediation service offers a confidential forum to discuss and explore the resolution of issues between these tenant farmers and their landlords.

I know it has led to one agreed settlement between parties and I very much hope it can provide a satisfactory outcome for more of those affected.

I urge all the tenants and landlords involved in this situation to use the mediation service and try to find the best possible solution for their individual situation.

I am also in close contact with the Scottish Tenant Farmers Association and working with them to consider anything more that can be done to provide additional support for the families involved.

I also want to take this opportunity to correct a few misunderstandings about the current situation and the history of how things came to this position. Firstly, I want to make clear that these tenants, in their limited liability partnership tenancies, never had security of tenure.

It is very important to understand that the Patersons and the other tenant farmers who raised court action challenging the Remedial Order were tenant farmers operating under a form of limited liability partnership tenancy. In every single case, the partnership would have a fixed and agreed duration. And in every case, that meant the tenant entered into a contract with the landlord knowing that there would not be security of tenure but rather a fixed term during which the land would be rented to the tenant.

These tenancies were regularly 10 years or longer, with the period of notice dependent upon the individual partnership agreement between tenant and landlord. In the case of the Patersons, in part because of action taken by this Scottish Government, the tenancy in fact lasted longer than intended by the original agreement.

I understand that the majority of the many farmers involved in these limited liability partnership tenancies resolved matters with their landlords through private agreements as is right and proper.

Where the tenancy was terminated – as with the Patersons – that was a decision not of the Scottish Government but of their landlord. The Scottish Government has no locus in eviction proceedings as agricultural tenancy agreements are a private contractual matter between two parties, the landlord and the tenant.

The Agricultural Holdings (Scotland) Act 2003 was brought forward by the then Lab-Lib coalition admin- istration. In response to a finding by the UK Supreme Court that a provision of the Act was outwith the competence of the Scottish Parliament, a legislative fix, the Remedial Order, was put in place in April 2014; it balances the rights of the tenant and the landlord. It ensures all tenants affected by these issues receive at least a 12-month notice period if their tenancies are being brought to an end, giving farmers time to plan their future work and home. Importantly, it put tenants in a better situation than they would otherwise have been in.

Of course, this has been a difficult and, at times, no doubt, confusing journey. But we have never promised to pay compensation to these tenants or received any claims for compensation for consideration prior to these tenants raising court action. The tenants themselves chose to go to court, which is their legal right. As the Government, we must now follow the due legal process; we can’t pay out taxpayers’ money unless there is a legal liability to do so. We must await the outcome of the court case and then we will look carefully at the judgment and what action, if any, may be required.

Meantime, I would reiterate we have put in place a mediation service to try and help those affected resolve the situation they are in and I urge those involved to take up this option and start their journey towards the best possible outcome.'

Angus McCall, Scottish Tenant Farmers Association: 'This issue has been beset by a catalogue of confusion, delay and mishandling'

‘There can be no doubt that the “Salvesen Riddell” saga has been one of the most unfortunate and badly handled pieces of legislation in the history of the Scottish Parliament. Its genesis lay in a well-meaning, but ill-conceived attempt by the Lab-Lib executive to protect limited partnership tenants from having their leases prematurely terminated during the passage of the 2003 Agricultural Holdings Bill.

STFA was closely involved in working with the government and Parliament in trying to find solutions for the affected tenants following the Supreme Court ruling and the Remedial Order. Ministers and the Parliament seemed to have every intention to devise a fair settlement to the dilemma faced by the tenants. Mediation was promised at an early stage, the cabinet secretary assured Parliament that compensation for individual tenants would be looked at “sympathetically”

and tenants were led to believe that Government would be party to a tripartite mediation with landlords and tenants.

However, a catalogue of confusion, delay and mishandling by government lawyers and officials stalled the promised mediation until it was too late. Consequently, the tenants were advised they had no option but to take legal action to seek any form of compensation or redress. The current offer of mediation, while welcome, has come too late and is very much a stop-gap measure.

This unfortunate episode is a case of the present Government having to pick up the pieces from mistakes made by a previous administration and Fergus Ewing is correct in his assertion that the decision to evict the tenants is one taken by their landlords, but earlier mediation could well have seen some agreements made which would allow the tenants to remain on their farms.

I must, however, disagree with Fergus Ewing’s assertion that the these tenants never had security of tenure. The six or so tenants who had followed the correct procedure according to the 2003 Act in claiming secure tenure, must have had security until the Supreme Court ruled S72 of the Agricultural Holdings Act unlawful. They certainly believed they had, they were legally advised they had, and acted accordingly. They have therefore lost an asset for which they must be due compensation.

It is also important to get these limited partnership tenancies into context; they were a device to avoid security of tenure and were used as the main letting vehicle from the 1970s onwards.

Generally speaking, they were let initially for a limited period of time but this was commonly continued on a year-to-year basis on “tacit relocation”, often for decades.

The expectation of these tenants was that their period on tenure would be continued unless the landlord required it for another purpose.

Three tenants have so far been evicted from their farms and another five are expecting to meet the same fate this year.

STFA would urge Government to encourage uptake of the mediation service at an early stage so that mediation does not take place against the backdrop of a ticking clock, as has been the case with Andrew Stoddart in 2015 and the Paterson brothers last year.

We await the decision of the court case with interest and in the hope that justice will be done for these unfortunate tenant farmers who have been the victims in this long running and life-sapping debacle.”