Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland): SC 24 Apr 2013

The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had been settled, the Court now considered the compatibility with his human rights of the section which purported to restrict his rights of appeal.
Held: The section was incompatible in purporting to remove his property rights without providing the possibility of an appeal. Article 1 was engaged, and though the provision pursued a proper aim, it was disproportionate. Section 72(10) of the 2003 Act denied the benefit of section 73. It was hard not to see the section as intending to deprive landlords of their rights retrospectively.
Lord Hope of Craighead explained the jurisprudence on Article 1 P1: ‘The tests to be applied are now firmly established. The second paragraph of A1P1 must be construed in the light of the principle laid down in the first sentence of the article. An interference must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The search for this balance is reflected in the structure of the article as a whole and therefore also in the second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued.’
Lord Hope, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Toulson
[2013] UKSC 22, UKSC 2012/0111, 2013 SLT 863, [2013] HRLR 23, 2014 SCLR 44, 2013 GWD 14-304
Bailii, Bailii Summary, SC Summary, SC
Agricultural Holdings (Scotland) Act 2003 72(9)(a)(i) 72(10), European Convention on Human Rights, Scotland Act 1998
CitedInland Revenue v Graham’s Trustees HL 1971
The House was asked as to the valuation of a farm. That turned in part on estate duty legislation and in part on whether, on the death of a partner, the surviving partners were entitled to take up the firm’s secure agricultural tenancy.
Held: . .
CitedMacFarlane v Falfield Investments Ltd SCS 1998
The practice had grown up of granting new agricultural tenancies to limited partnerships constituted under the Limited Partnerships Act 1907 in which the landlord or his nominee was the limited partner and the tenants of the farm were the general . .
At Scottish Land CourtSalvesen v Riddell SLC 29-Jul-2010
SLC Agricultural holdings – limited partnership tenancy – limited partner being agent of landlord – notice of dissolution of partnership validly given – notice given on 3 Feb 2003 – expected change of legislation . .
At Court of SessionSalvesen v Riddell and Another SCS 15-Mar-2012
Second Division – The court allowed an appeal under section 88(1) of the 2003 Act from a decision of the Scottish Land Court. The section was incompatible with the European Convention on Human Rights. The Court proceeded on the basis that section 72 . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedMellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
CitedSpadea And Scalabrino v Italy ECHR 28-Sep-1995
Hudoc Preliminary objection rejected (non-exhaustion); No violation of P1-1; No violation of Art. 14+P1-1 . .
CitedBarreto v Portugal ECHR 21-Nov-1995
No violation of Art. 8; No violation of P1-1. A restriction on a landlord’s right to terminate a tenant’s lease constitutes control of the use of property within the meaning of the second paragraph of the article . .
CitedHutten-Czapska v Poland ECHR 19-Jun-2006
Grand Chamber. The court considered the need for establishing a fair balance in cases under A1P1: ‘Not only must an interference with the right of property pursue, on the facts as well as in principle, a ‘legitimate aim’ in the ‘general interest’, . .
CitedGauci v Malta ECHR 15-Sep-2009
. .
CitedLindheim And Others v Norway ECHR 12-Jun-2012
. .
CitedMA and Others v Finland ECHR 10-Jun-2003
(Admissibility) Legislation which is retroactive is not necessarily incompatible with A1P1, retrospective legislation is not as such prohibited by A1P1. . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedBack v Finland ECHR 20-Jul-2004
The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a . .
CitedDS v Her Majesty’s Advocate PC 22-May-2007
An amendment to the 1995 Act placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences. The defendant appealed, saying that the restrictions were incompatible with the right to a fair trial under . .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedWalden v Liechtenstein ECHR 16-Mar-2000
The Liechtenstein constitutional court had held that the unequal pension treatment afforded to married and unmarried couples was unconstitutional. The constitutional court did not set aside the existing legislation, given the practical difficulties . .
CitedCadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .

Cited by:
At SCSalvesen v Riddell and Another SCS 6-Jan-2015
The appellant enrolled a motion requesting payment by the Land court of the costs occasioned in a long running legal dispute. . .
CitedHarvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .
CitedThe Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.472943