The decision of the Supreme Court, in the case of Salvesen v Riddell, concerned Section 72 of the 2003 Act. Section 72 applies to circumstances where a secure agricultural lease is granted to a limited partnership and one of the limited partners is also the Landlord under the lease. Where the tenancy is terminated by the dissolution of the partnership, then the general partner may, by giving notice, step into the tenancy as an individual in the place of the former partnership. The tenancy would then continue with the former general partner as an individual as the new Tenant and the Landlord both bound by its terms.
However, this "step in" right on the part of the general partner was subject to some caveats as laid down by the 2003 Act. In particular Section 72 (10) allowed the Landlord, in certain circumstances, to have the benefit of Section 73 of the 2003 Act. Section 73 allowed the Landlord to benefit from a termination procedure to avoid the material consequence of indefinite security of tenure.
The issue identified by the Supreme Court was that Section 72 (10) only applied to tenancies that were purportedly terminated after 1 July 2003. For terminations in the period between 16 September 2002 (the date of the 2003 Act taking effect) and 30 June 2003, the Landlord is denied the benefit of Section 73 and would be subject to the consequences of a secure agricultural tenancy.
The Supreme Court ruled that this differential treatment of Landlords was unjustified, and that to this extent the 2003 Act was therefore in breach of Article 1 of the ECHR.
A draft order which seeks to fix this breach, as identified by the Supreme Court, is now the subject of consultation. The proposed order will allow certain affected Landlords, who are now subject to a secure agricultural tenancy, to have the benefit of Section 73 of the 2003 Act.
The consultation document can be accessed here. The consultation will close on 7 February 2014.