New Judgment: Salvesen v Riddell & Anor, Lord Advocate intervening  UKSC 22
24 Wednesday Apr 2013
On appeal from:  CSIH 26.
The issue in this appeal is whether, in terms of the Scotland Act 1998, the Agricultural Holdings (Scotland) Act 2003, s 72 is outside the legislative competence of the Scottish Parliament. The appellant argued that it is incompatible with his rights under art 1 of the First Protocol (A1P1) to the ECHR relating to the protection of his property.
The Supreme Court unanimously allows the appeal. It finds that the appellant’s A1P1 rights were violated by s 72(10) of the 2003 Act. It makes an order under the Scotland Act suspending the effect of this finding effectively until the defect is corrected. A measure designed to deal with the large number of dissolution notices served on 3 February 2003 in an attempt to avoid the effects of the Bill can be said to have had a legitimate aim. The effect of s 72(10) is to deny the benefit of s 73 to all cases where the tenancy was purportedly terminated between 16 September 2002 and 30 June 2003 but which continue to have effect by virtue of s 72(6). The landlords who served dissolution notices during that period are in a worse position than those who served notices from 1 July 2003. The Court was not persuaded that there was a justified difference in treatment between this group and landlords of continuing tenancies who served notices from 1 July 2003. The benefit of s 73 was regarded in their case as an appropriate counterweight to the benefit that was conferred on the general partner by s 72(6). The difference in treatment of those whose notices were served before that date has no logical justification. It is unfair and disproportionate. The provision is discriminatory in a respect that affects the landlords’ right to the enjoyment of their property. S 72 can be read only in a way that is incompatible with the A1P1 right. It is plain that the whole section needs to be looked at again, as does its relationship with s 73.
For judgment, please download:  UKSC 22
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