Tenant Farming Commissioner: inquiry function
Section 29 – Application to inquire into breach of code of practice
77.Sections 29 to 35 make provision about the exercise of the Tenant Farming Commissioner’s function to inquire into alleged breaches of the codes of practice under section 24(1)(c). Section 29 sets out the process for a person with an interest in the tenancy, or who would have an interest but for an alleged breach, to apply to the Tenant Farming Commissioner to inquire into an alleged breach of any code of practice published under section 27.
78.Subsection (2) sets out what any application under subsection (1) must contain.
79.Subsection (3) provides that an application must be accompanied by the appropriate fee, unless the Commissioner waives the need to pay the fee under subsection (5).
80.Subsection (4) requires the Commissioner, when setting the fee for the application, to consider the likely impact that the amount of the fee might have on the number of applications.
81.Subsection (5) sets out the circumstances in which the Commissioner can waive the fee for an application under subsection (1).
82.Subsection (6) makes clear that any application under subsection (1) does not affect any time limits for proceedings before the Scottish Land Court.
Section 30 – Procedure for inquiry
83.Section 30 provides for the process of an inquiry into an alleged breach of a code of practice, following receipt of an application under section 29, by setting out the conditions that must be satisfied in order for the Tenant Farming Commissioner to inquire into an alleged breach; what the Commissioner may do in cases where those conditions are met; and in cases where those conditions are not met.
84.Subsection (1) sets out the conditions that must be satisfied in order for the Tenant Farming Commissioner to inquire into an alleged breach of a code of practice. For example, the effect of subsection (1)(c) is that repeat applications concerning the same alleged breach are not permitted.
85.Subsection (2) provides that, where the Commissioner is not satisfied that the application contains sufficient information to proceed with an inquiry, the Commissioner can require the applicant to provide any additional information that is considered appropriate within a specified period.
86.Subsection (3) sets out the circumstances under which the Commissioner may dismiss an application.
87.Subsection (4) sets out what the Commissioner must do when satisfied that an application meets the conditions in subsection (1).
Section 31 – Enforcement powers
88.Section 31 makes provision for requests by the Tenant Farming Commissioner for information for the purposes of applications and inquiries relating to alleged breaches of published codes of practice, and for the imposition of non-compliance penalties.
89.Subsection (1) gives the Commissioner a general power to make a request during an inquiry for any person to provide information appropriate for the purposes of that inquiry.
90.Subsection (2) provides that the Commissioner may impose a non-compliance penalty where a person has failed to provide a response to an application which meets the relevant conditions within the period specified by a request under section 30(4)(c); and where a person has failed to provide information requested under subsection (1) for the purposes of an inquiry.
91.Subsection (3) sets out that the Commissioner must set the amount of the non-compliance penalty, but this must not be set above £1000.
92.Subsection (4) provides that any non-compliance penalty imposed must be paid to the Commission.
93.Subsection (5) gives the Commission the power to recover any non-compliance penalty that is not paid as a civil debt.
Section 32 – Notice of non-compliance penalty
94.Section 32 makes provision about the content of a notice of a non-compliance penalty given by the Tenant Farming Commissioner under section 31(2) and provides a right of appeal for any person in receipt of such a notice.
95.Subsection (1) sets out the information that must be included in a notice of a non-compliance penalty.
96.Subsection (2) provides that a person served with a notice has the right to appeal to the Scottish Land Court against the notice and sets out the permitted grounds for any appeal. The grounds for appeal are broad and allow, for example, the Court to consider whether a request for confidential information should be upheld.
97.Subsection (3) requires any appeal under subsection (2) to be made within 28 days of the day the notice of non-compliance was received.
98.Subsection (4) provides that, where a non-compliance notice is appealed, the penalty is suspended from the day the appeal is made until the appeal is determined or withdrawn.
99.Subsection (5) allows the Scottish Land Court to overturn, confirm or vary any notice of non-compliance that is appealed.
Section 33 – Report on inquiry
100.Section 33 makes provision for the production and publication by the Tenant Farming Commissioner of a report following an inquiry into an alleged breach of a code of practice.
101.Subsection (1) provides that the Commissioner must publish a report as soon as practicable after the completion of an inquiry and sets out the information the report must contain where (a) there is sufficient information to reach a decision and (b) where there is not sufficient information to reach a decision.
102.Subsection (2) provides that any report published can be admitted as evidence in any proceedings before the Scottish Land Court.
103.Subsection (3) requires the Scottish Land Court to take into account any part of a report that it considers may be relevant to any proceedings before it.
104.Subsection (4) provides that any report published can also be admitted as evidence, and should also (where relevant) be taken into account, as part of any arbitration proceedings under the 1991 and 2003 Agricultural Holdings Acts.
Section 34 – Tenant Farming Commissioner: confidentiality of information
105.Section 34 makes provision about the confidentiality of information obtained by or on behalf of the Tenant Farming Commissioner for the purposes of an inquiry into the breach of a code of practice.
106.Subsection (1) prohibits any person mentioned in subsection (6) from disclosing any information obtained for the purposes of an inquiry into the breach of a code of practice unless authorised to do so under subsection (2).
107.Subsection (2) sets out the limited circumstances under which a relevant person can disclose any information obtained for the purposes of an inquiry into the breach of a code of practice.
108.Subsection (3) provides that any person who knowingly discloses any information obtained for the purposes of an inquiry into an alleged breach of a code of practice, where they are not authorised to do so under subsection (2), commits an offence.
109.Subsection (4) sets out the potential penalty where a person is found to be guilty of an offence under subsection (3).
110.Subsection (5) sets out the defences available to a person charged with an offence under subsection (3).
Section 35 – Protection from actions for defamation
111.Section 35 provides that, for the purposes of the law of defamation, any statement made by the Tenant Farming Commissioner as part of the exercise of the Commissioner’s function under section 24(1)(c) to inquire into alleged breaches of the codes of practice attracts qualified privilege. This means that any such statement would not be defamatory unless it could be shown that the statement was motivated by express or actual malice.
Section 36 – Report on operation of agent of landlords and tenants
112.Section 36 places an obligation on the Tenant Framing Commissioner to prepare a report on the operation of agents of landlords and tenants and to submit this report to Scottish Ministers within 12 months of this section coming into force. In preparing the report the Commissioner must consult any persons appearing to the Commissioner to have an interest in the operation of agents of landlords and tenants.
Section 37 – Recommendations by Tenant Farming Commissioner for modern list of improvements
113.Section 37 places an obligation on the Tenant Farming Commissioner to prepare a report for submission to the Scottish Ministers with recommendations for a modernised list of improvements to agricultural holdings. The Commissioner must consult persons appearing to the Commissioner to have an interest in the draft recommendations before submitting the report to the Scottish Ministers.
