By Brian Henderson

WHILE THE cut and thrust of the Brexit/Indyref2 battle continued to provide plenty of scope for speculation from the media, there seemed to be a bit of a weary 'what-ever' from the general public when it was announced that Article 50 will finally be triggered next week.

What is also becoming pretty obvious is that virtually everything else is being put on the back burner while the political classes focus on these issues and the machinations surrounding them.

This has led to a deal of slippage on many other issues which would normally have been centre stage in the legislative and statutory process.

The land reform agenda is one of the areas to suffer on this front – and until the figures showing yet another slump in the size of Scotland’s tenanted sector were revealed last week I think everyone had almost forgotten it was still a live issue. Yet there remains a whole mountain of secondary legislation still to be sorted out.

But, if you happen to be facing a rent review later this year, it might be of some interest to know what rules it is likely to be carried out under.

It’s becoming pretty obvious, though, that the brief answer is that it will be the old set, as things are so far behind that there’s almost no chance that the change to basing rents on the productive capacity of a unit will be ready by this November – and it might even be pushed to be on the statute books by Martinmas, 2018.

However, I’m told that this new 'productive capacity' methodology to be used for calculating farm rents is to be tested out over the course of the next few weeks.

Tenders for carrying out what they call a modelling exercise had to be submitted to the Scottish Government through the public contracts portal by the beginning of the month. This will, basically, be an evaluative dry run to sense check the proposals to see if they will actually work on the ground – and it was indicated that the job was likely to go to one of the big land agencies.

Now some individuals operating in this sector have had a bad press in recent times – due, not least, to demands in the Scottish Parliament for a review of the sector and its professional standards. So cynics might be forgiven for thinking that offering this job to some of these practitioners might be akin to putting the foxes in charge of building the chicken run.

It’s not a fair analogy, of course, but to be honest, who else would be in a position to carry work like this out?

For if you look at the list of arbiters it doesn’t take long to see just how thin on the ground the sage old greybeards from the ranks of working farmers who used to take an impartial view in disputes and other tenancy matters have become nowadays.

The need for professional indemnity along with higher work pressures on the farm at home has probably discouraged many from taking up this important role.

Of course, the sheer complexity of much of the legislation surrounding the rural sector has led to the growth in the land agency sector. And while the world-weary older practitioners of the trade are still in evidence at land agents’ meetings, there also seems to be a considerable cohort of fresh-faced young things, dressed in enough checked tweed to give the pages of the Brooke Taverner sales catalogue a run for its money.

Back at the modelling exercise though (if you pardon the pun), the fact that this evaluation will only look at 10 farms across the whole of the country won’t fill the industry with much confidence. Nor will the realisation that it is to be conducted over the next four or so weeks when we’re all going to be tied up with the spring sowing, lambing and calving – and, of course, the annual IACS exercise.

But while using 'productive capacity' as a measure for setting a fair rent sounds a straightforward approach, I imagine that there will be just as many battles fought through the courts before we’re able to spit out the bones on this one as there were following the 2003 act.

The fact that Law Lord Brian Gill – the man who rode a coach and horses through the Land Court’s interpretation of the poorly drafted 2003 Holdings Act and, in the process, precipitated the push for further reform – has already questioned the approach, might set alarm bells ringing.

Widely viewed as 'the man who wrote the book' on agricultural tenancy legislation, Gill has recently written another (available in all good bookshops, price £248 if anyone is interested) and has expressed a view that there is no reason to think that comparables will be any less relevant under the new fair rent test than they were under the old open market test.

Looking at the spec' given to those tendering for the evaluation exercise, though, given that the 'non-exhaustive' list of factors which need to be taken into account when determining productive capacity runs to several pages even before the modelling has been started, the level of complexity by the time it’s finished is likely to be overwhelming.

There’s not even agreement within the industry on how the divisible surplus at the end of the budgeting exercise should be shared between tenant and landlord – or, for that matter on how accommodation should be treated, where the farmer’s own labour and management skills are built into the equation or how any 'marriage value' will be accounted for.

What is bound to come out in the modelling exercise' though' is the fact that changes in both input and output prices will have a huge effect on any rental calculated under the proposed system.

Given the fact that things are going to get even more volatile as we exit the EU, figures which might indicate a large rent if carried out at one specific time could equate to a negative rent a few months down the line.

As of yet, there has been no indication if the input and output values to be used are for the immediate period during which the review is conducted, the previous period or those likely to prevail across the next rental term.

Trying to judge an entirely new system on a four-week modelling exercise, carried out on 10 farms during the spring rush will be difficult at best, pointless and downright dangerous at worst.

So, even without slippage, there’s a mountain of work to be done.