What would a tenant farming commissioner offer the sector?

The government’s promise to issue a call for evidence this summer on the proposal for a tenant farming commissioner (TFC) for England is yet to be fulfilled.

That commitment came in response to one of the many recommendations made in the Rock Review of the tenanted sector.

The call will seek evidence on the benefits such a role could bring and how it might work in practice, says Defra.

A tenant farming commissioner would aim to ensure government policy is tenant proof and that there is fairness within the tenanted sector, says the Rock Review.

The review also calls for a commissioner to have the remit to examine and strengthen dispute resolution processes between landlords and tenants.

See also: Rock review – what are the keys to a vibrant tenanted sector?

Scotland’s TFC success

Scotland introduced a tenant farming commissioner in 2017 and its first appointee, Dr Bob McIntosh, remains in the role.

His approach and achievements have been roundly welcomed by both landlord and tenant organisations.

Christopher Nicholson, chairman of the Scottish Tenant Farmers Association (STFA), says the establishment of the office of TFC in Scotland has brought huge benefits to the country’s tenanted sector:

1. Improving landlord and tenant relationships by issuing guidance and codes of practice, and providing assistance in resolving disputes, sometimes by mediation
2. Monitoring the tenanted sector to see where there are issues to resolve and keeping an eye to the future to ensure tenancy legislation will be fit for purpose
3. Holding regular forum meetings with stakeholders, including Scottish government officials to discuss changes required
4. Collecting evidence to support future legislative change.

“It is not just the tenanted sector that has benefited from the TFC, but also wider land reform issues currently being addressed by the Scottish Land Commission, which has seen the benefit of codes of practice and is looking to apply similar principles to other areas of land management in Scotland,” says Christopher.

Landowner body Scottish Land & Estates also sees the appointment as very constructive in facilitating sensible discussions.

“Bob is hugely respected by everyone – which is vital – and rather than favouring any side, he has worked diligently for the overall good of the sector,” says Stephen Young, SLE’s director of policy.

“Key to the success of the tenant farming commissioner is setting out a clear remit for the role and then finding someone with the knowledge, experience and willingness to maintain neutrality in order to provide confidence to all stakeholders in the sector.

“In Scotland, we’ve been very fortunate that Bob McIntosh has worked positively with tenants, landlords and other parties to bring people together even when difficult discussions have been necessary.

“One of Bob’s first successes was creating a series of good practice guidance, in conjunction with stakeholders, on how many aspects of tenant-landlord negotiations should be conducted.

“It was a beneficial development that gave sensible steps for different parties to follow, hopefully making matters less adversarial in the process.

“In that regard, the role of the TFC has been really constructive, not in creating new bureaucracy or another figure to wield power over the sector, but in facilitating sensible discussions than can avoid the mistaken pursuit of new legislation being introduced to solve problems.”

Reaction to TFC for England proposal

The possibility of a TFC for England has had a broadly very positive reception. Tenant Farmers Association chief executive George Dunn is anxious that the call for evidence is not further delayed.

“In addition, the call for evidence itself must not be an excuse to push this issue into the long grass,” he says.

“In the light of the Environment, Food and Rural Affairs select committee’s inquiry into the tenanted sector, it would be helpful for Defra to ask the committee to help it gather views on the terms of reference, governance, structure and role of a tenant farming commissioner.”

“It would also seem sensible for the commissioner either to chair the newly established farm tenancy forum or at least be a standing member of it.”

The justification for creating the role of a commissioner is already clearly set out within the Rock Review report, says George, so the call for evidence should be used to answer questions on how a commissioner for England should operate.

“Their role would not be to lobby for tenants but to benefit both sides,” he says.

He sums up the TFC’s principal functions outlined by the Rock Review as covering the following areas:

• Policy Ensuring that government policy, across all departments, takes the needs and issues of the tenanted sector into consideration.
• Good practice To provide a forum for collating and promoting good practice in managing relationships between landlords and tenants, particularly involving the land agent community, and in highlighting and critiquing bad practice where it exists. In this way, the commissioner would have a role in encouraging a greater and more established collegiate approach to land management between landlords and tenants.
• Dispute resolution To review and assess the efficiency of dispute resolution in the farming landlord-tenant sector and influencing paths to improvement. This could include providing a mechanism for collating and disseminating relevant information from arbitration awards that would assist a more common understanding of arguments and decisions while respecting the anonymity of those involved in individual disputes.

Many sectors of the economy and society have an ombudsman or a commissioner where people can receive independent support and advice, particularly in circumstances where one side or other holds a dominant position, points out the TFA.

“There is much that a commissioner could bring to ensure both fairness within the landlord tenant sector and that it plays its part in delivering wider environmental and social outcomes for the nation as a whole,” says George.

CLA remains unconvinced

Country Land and Business Association president Mark Tufnell says the organisation is not yet convinced that the tenant farming commissioner role is necessary.

“This role will be looked at by the Farm Tenancy Forum and further evidence needs to be gathered,” he says. “The CLA supports a thriving tenanted sector that works for both landlords and tenants.

“Collaboration is increasingly important, and many landlords are already engaging with their tenants on participating in schemes.

“Learning from Scotland, both the remit of a tenant farming commissioner and the independence of the person appointed to the role are absolutely critical should the minister decide to set one up.

“Trust is a vital ingredient in a flourishing tenanted sector, so impartiality of any commissioner would have to be enshrined in legislation, and rigorously upheld by the office holder.”

Recourse to any commissioner would have to be available to both landlords and tenants, says the CLA.