Before section 75

Agricultural Holdings (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:45 pm on 12 March 2003.

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Photo of Murray Tosh Murray Tosh Conservative 3:45, 12 March 2003

Group 26 is on the prohibition of certain terms of leases or agreements. Amendment 42 is in a group on its own.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Perhaps the major defect of the 1991 act was the fact that it was circumvented. Its purpose was frustrated and landowners and their agents used various devices, such as write-down agreements and post-lease agreements, to pervert the purpose for which the 1991 act was passed. It therefore seems logical and necessary that the bill—the purpose of which is, in part, to set up new vehicles that can be used in the tenanted sector—ensures that that does not happen to the new vehicles, otherwise we could rightly be criticised for failing to achieve our purpose.

Amendment 42 would quite simply prohibit any attempts that might be made to disapply the rules and regulations that we are setting up for the new SLDT and LDT vehicles. The operative provision is subsection (2), which states that

"any term of the lease or the agreement which purports to provide that any right conferred on the tenant, or obligation imposed on the landlord, by this Act does not apply to the tenancy is ... of no effect."

I hope that all members will agree to the amendment, as it is essential that, if the new vehicles are to be effective, they will act as we intend them to act and will not be overridden by smart lawyers' fancy agreements, which we have seen in the past.

I move amendment 42.

Photo of Alex Fergusson Alex Fergusson Conservative

I apologise to Mr Ewing for being absent from the chamber when he spoke—I was away on important business.

Our opposition to amendment 42 is entirely focused on the first word of its title—"Prohibition". Any prohibition will surely have a limiting effect on the amount of land that is to be let in the future. That goes against the supposed aim of the bill, although I will argue in the debate to come that the bill itself will prevent the fruition of that aim.

The effect of amendment 42 would be to rule as void any clause that is entered into SLDTs, LDTs or 1991 act tenancies where that clause has the effect of bypassing some other section of the legislation relating to those leases. The amendment would not only have a limiting effect in respect of increasing the supply of land to the tenanted sector, but would undoubtedly increase the supply of work to members of Mr Ewing's former profession, which has been given more than enough work by the Parliament already. If we are to amend the bill, we should do so in a way that frees it up rather than further restricts it.

Photo of Allan Wilson Allan Wilson Labour

I am sorry—I was elsewhere.

I share Fergus Ewing's view that the protections that are afforded to tenants under the new legislation should be respected, but we are unsure in more ways than one about what the provision would add to the bill as it stands.

We have received no particular expression of concern from tenants and their representatives about the possibility that landlords and tenants might be able to contract out of the tenant's statutory rights. The bill is explicit about the nature of tenants' rights in a number of respects, such as in respect of the right to buy, the right to diversify and the right to compensation for improvements, which are all important changes that transfer the balance in favour of the tenant. It is important that the bill also removes some explicit get-outs that have applied to tenants' rights under the 1991 act. In particular, landlords and tenants will no longer be able to contract out of the landlord's responsibility for renewing fixed equipment, which section 5(3) of that act has explicitly permitted, while the various provisions that allow the parties to enter into a write-down agreement in respect of tenants' improvements are also being removed.

We are principally concerned about the risk of unfortunate side-effects that could arise from the adoption of amendment 42. Perhaps if the principle had been adopted at the outset, we could have framed the bill around it. Unfortunately, that did not happen and it is possible that introducing the principle at stage 3 could result in unfortunate side-effects.

At this stage, without further opportunity to consult the sector and revise the provision later if that were to prove necessary, I am nervous about making a change that could result in the unforeseen effects to which I referred. On this one occasion, I am going to be conservative, as we are also unclear about how tenants would benefit from the provision. I can see circumstances in which the amendment would not benefit tenants. On that basis, I ask Fergus Ewing not to press amendment 42.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I have listened with interest in the hope that there might be an argument against amendment 42, but I did not hear any such argument.

Amendment 42 is a simple amendment that would provide for a non-contracting-out section. The amendment says that the

"right conferred on the tenant, or obligation imposed on the landlord, by this Act" cannot be contracted out of.

I appreciate that the minister was distracted momentarily. However, he did not provide a single example of a right that the bill confers on tenants that he thinks the landlord should be able to overturn and subvert. The serious point to be made is that that is exactly what happened under the 1991 act. In a way, it is because of that fact that we are in the chamber today.

Photo of Allan Wilson Allan Wilson Labour

I could have given examples. I explained why we oppose amendment 42 in principle and why we oppose its introduction at this stage. Had amendment 42 been lodged at the outset, we could have drafted legislation round it. We have discussed at length the obvious advantage to a tenant of being able to contract out of the statutory notice period for quitting a tenancy in return for a cash payment that the parties agree to contractually. That is one obvious example—there are others. It would not serve the interests of the tenant to simply have a blanket ban on the parties' ability to contract out voluntarily of those commitments.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I disagree with the minister. I am not sure that that was indeed an example, as the minister did not say to which section he referred or to which right or period of notice. The bill contains no provision that the tenant would willingly wish to contract out of.

Amendment 42 speaks for itself. If it is not agreed to and successful attempts are made by landowners to pervert the purposes of the act, that will be a result of the absence of the new section that amendment 42 would have inserted. I hope that the minister is confident in the arguments that he has made this afternoon.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 42 be agreed to. Are we agreed?



Division number 35

For: Adam, Brian, Canavan, Dennis, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Grahame, Christine, Hamilton, Mr Duncan, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Margo, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, McNeil, Mr Duncan, Morgan, Alasdair, Neil, Alex, Paterson, Mr Gil, Reid, Mr George, Scott, John, Stevenson, Stewart, Ullrich, Kay, White, Ms Sandra
Against: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Fergusson, Alex, Finnie, Ross, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McIntosh, Mrs Lyndsay, McLeish, Henry, McMahon, Michael, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan, Young, John
Abstentions: Ingram, Mr Adam

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 23, Against 77, Abstentions 1.

Amendment 42 disagreed to.