Some final thoughts on the #indyref

There is a referendum in Scotland on 18 September 2014. You might have noticed. Here are some thoughts on that topic, just in case you did not have enough to read.

As is pretty obvious, I am voting Yes. I wrote a blog three months ago explaining why I planned to do that, whilst offering two chinks in my armour that could be exploited so as to make me vote No. In those three months, no-one has managed to convince me: 1) that my human rights and fundamental freedoms might be harmed with a Yes vote; or 2) educated me as to how there might be an existential threat to the NHS in the event of an independent Scotland coming to pass. Even the recent story about the SNP’s apparent massaging of the NHS Scotland budget and a £400m-£450m funding gap over the next two financial years has not swayed me: maybe I am being thick (it has been known to happen) or maybe I have a blind-spot (I am acutely aware those who self-identify with Yes can desensitize themselves to counter-arguments), but from my reading of this BBC story there is plainly a funding gap coming up under the status quo, whether or not that is spun as an anti-SNP story about that party’s management since forming a majority Government at Holyrood in 2011. Clearly, this story is difficult to present as an argument for independence, but it is a mighty big double-edged sword that can swing back against the status quo given the funding gap has developed in the current financial model for Holyrood.

As for my own reasons for voting Yes, I think the Scottish Parliament has done pretty well with one hand tied behind its back, and I think it could continue such work with the power a Yes vote would invest in it. To be blunt, I do not believe a No vote guarantees such an empowerment.

Anyway, that is all I am going to write about my own decision. I am not going to be so presumptuous to tell anyone how to vote at this stage of the game. The main thing I want to note is this. Not all Yes folk are deluded nationalists (the likes of Andy Wightman and Peter Matthews articulately explain why they are voting Yes without even getting near that straw man I have just created). Not all No folk are No-Surrendering fans of foodbanks and the trappings of all things British. At 22.01 on 18 September 2014 all the participants in the referendum, plus a heck of a lot of interested observers, will still need to work together for the future. So vote however you see fit, marvel in the democratic process, and continue to be pals with those you are pals with now.

See you on the flipside.

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Thoughts on Stage 1 of the Community Empowerment (Scotland) Bill

Last week I made a submission to the Local Government and Regeneration Committee of the Scottish Parliament, responding to its Call for Evidence at Stage 1 of the Community Empowerment (Scotland) Bill. That submission and 153 others are available online and all of them are of interest in their own way.

What is the Bill going to do? If enacted, the nine Parts of the Bill will make changes to things like:

community planning (see Part 2, in part tied to the new National Outcomes catered for Part 1);

common good assets, with a view to increased accountability of local authorities administering such resources (see Part 6); and

allotments used for non-profit cultivation of vegetables, fruit, herbs or flowers (see Part 7).

In general, the Bill follows the direction of travel proposed by the LRRG (a point briefly considered in an online piece I contributed to the Journal of the Law Society of Scotland, published today). This land reform trajectory is evident in the context of the expansion of the “community right to buy” (see Part 2 of the Land Reform (Scotland) Act 2003). The amendment will allow all land in Scotland – not just rural land – to be the subject of a pre-emption in favour of the community. Further, communities are to gain a right to acquire certain underused or neglected assets, irrespective of whether the owner actually wishes to sell. Most of my comments on the Bill (copied below) related to this proposal and its human rights law implications.

What next for the Bill? I understand the Committee is scheduled to start taking oral evidence at a meeting on 24 September 2014. This, of course, assumes Scotland will have recovered from any independence referendum hangovers. Bad jokes about hangovers aside, the rather obvious legal consequence of a positive result in that referendum would be to set the scene for Holyrood legislation freed from certain reserved powers (under the Scotland Act 1998), but any future legislation would still need to be mindful of human rights law.

Wait, don’t tell me you weren’t expecting at least one reference to the #indyref that we are only one week away from? Readers would have been distraught to find a post without such a reference, I am sure.


Extract Response to the Local Government and Regeneration Committee

This response will focus on: human rights; the use of the term “abandoned”; the need for a company limited by guarantee in the proposed Part 3A of the Land Reform (Scotland) Act 2003; and the Part 3A register

Human Rights

The right to property is recognised in the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), that right being expressed in Article 1, Protocol 1 (“A1P1”). A1P1 does not mean that private ownership is sacrosanct in all circumstances. A landowner can be divested of ownership when it is in the public interest for that to happen. The Committee may be interested to note that in South Africa, there is a specific constitutional declaration in section 25 that “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources” (although the recognised need for reform in post-apartheid South Africa is not a direct comparator to Scotland).

The yin that is the apparently retarding force of A1P1 is balanced against the yang of Article 11 of the UN International Covenant on Economic, Social and Cultural Rights, which guarantees certain rights such as sanitation, food and housing. Scottish legislation must not be in breach of the ECHR, in terms of the Scotland Act 1998, but the Committee should be aware that human rights do not began and end at Strasbourg (where the European Court of Human Rights sits).

That said, the ECHR is crucial because of the role it plays in relation to devolved legislation (in the Scotland Act 1998 (as amended)). The Committee should therefore note that a compulsory transfer of property from one landowner to a new private landowner is acceptable in ECHR jurisprudence, as seen in James v UK (1986) 8 EHRR 123 and more recently in Pairc Crofters Ltd v Scottish Ministers [2012] CSIH 96; 2013 S.L.T. 308.

It can also be noted that the operation of positive prescription (under the Prescription and Limitation (Scotland) Act 1973) can serve to replace a remiss owner of land with another owner, where the new owner has possessed that land for a certain length of time and registered a deed at the Land Register of Scotland. That process is due to be reformed very soon, by the Land Registration etc. (Scotland) Act 2012, but for present purposes it shows that Scots law is perfectly comfortable with the idea of one person’s ownership being usurped by another.

As such, it would seem the current proposals to introduce a new Part 3A to the Land Reform (Scotland) Act 2003 and to widen the scope of the right already conferred by Part 2 are well within the realms of ECHR compliance.

Abandoned land

Clause 48 of the Community Empowerment Bill deals with “abandoned and neglected land” by giving communities a right to acquire land that is “wholly or mainly abandoned or neglected” (see the proposed s.97C(1) of the Land Reform (Scotland) Act 2003. The word “abandoned” is suboptimal, because it has a very specific meaning in Scots private law. Property lawyers would use that term in a situation where an owner has actively sought to walk away from an item of property. This is most readily imagined with corporeal moveable things (i.e. tangible objects that are not attached to land): consider Carey Miller with Irvine, Corporeal Moveables in Scots Law (2nd edition, 2005) at paragraphs 2.07-2.08. Whilst land cannot be cast away in quite the same manner, an owner may seek to disclaim land. This was most recently witnessed in the case SEPA v Joint Liquidators of Scottish Coal (2014 SLT 259).

As such, a synonym for abandoned seems preferable, but it is tricky to pick one. “Unused” and “underused” are ripe to cause arguments and there may be issues where an owner has made a conscious decision to not manage land (i.e. allow it to go wild, perhaps for conservation purposes). “Derelict” might be appropriate, but in common usage that normally relates to buildings. “Deserted” might imply a complete surrender of any relationship to the land. Unfortunately, I do not have an ideal substitute for “abandoned”, but the Committee should consider carefully whether “abandoned” is appropriate. One drastic solution might be to remove “abandoned” entirely, leaving the legislation to relate to “wholly or mainly neglected land”.

Company limited by guarantee

There is no compelling reason to mirror the requirement for communities to incorporate as a company limited by guarantee (but see below relating to the Part 3A Register). Whilst it might be argued consistency with the rest of the Land Reform (Scotland) Act 2003 is useful, this comes at the cost of flexibility for a community. An alternative approach is to focus on an organisation’s rules/constitution, as is the case with some common property options in the comparator jurisdiction of South Africa (See further Combe, “Parts 2 and 3 of the Land Reform (Scotland) Act 2003: A Definitive Answer to the Scottish Land Question?”, (2006) Juridical Review, pp.195-227).

The Part 3A Register

Although publicity is undeniably important when dealing with land, a query might be raised about the need for a new register. Assuming the requirement that a community be embodied as a company limited by guarantee is retained, publicity about that community comes via Companies House. The Land Register will provide publicity about the land. Notifications from the Scottish Ministers can (presumably) be publicised without a new register. Is a new register justified?

That said, a central reference point for Part 3A could be useful for a variety of people, so this potential criticism should not be overstated.

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A small story about a massive pulmonary embolism

2 September 2013.

I have not been outside in over a week.

Limited variety has been provided when I have shuffled from place to place and room to room, as various people prodded me, jagged me, scanned me and judged me, but moving around a building does not stop claustrophobia setting in. My last sortie to the outside world happened ten days ago, when a Czech chap escorted me to the local fertility centre, first wheeling me from the ward in a wheelchair then whisking me across the campus in a car. That experience would normally have been an instant contender for the top ten of bizarre experiences in my life, but my expectations had a damn good shake when they worked out what was wrong with me. So my hospital based sabbatical continues.

I make no secret of the fact that I am feeling a bit stir crazy. Other than that, I am not feeling too bad, actually. I was told my treatment might make me feel nauseous and I could expect to lose my hair. This has not happened. Yet. In fact, it is all just a bit too normal, although I am being spoilt rotten by friends old and new. Childhood pals are catching up with me and making a special effort to visit: Neil is driving across from Elgin today for the afternoon visiting slot. And people actually bring me three meals a day to save me from the chores of cooking and washing up, I have enough reading material to last me a lifetime and I have access to free WiFi (a perk of being a University of Aberdeen employee re-homed in a teaching hospital). Not too bad, eh?

For all that, I am not at liberty. Okay, my enforced and quietly consented to confinement is for my own good. A bit of tough medicine gets pumped into me via my newest appendage, namely a PICC line which protrudes from a vein in the crook of my left arm. Today I am hooked up to my third consecutive 24 hour bag of bleomycin, a drug that I desperately need to stay alive, as I have recently learnt. Paradoxically, bleomycin reacts in a funny manner with oxygen, causing changes in the lungs. Prior to treatment, my medical knowledge was such that I was aware of the need for oxygen to stay alive. My updated medical knowledge, improved by a crash course in chemotherapy, is acutely aware this is a trade off I need to quietly accept.

I have almost acclimatised to the need to steer this IV stand around with me, with its bright red balloon of chemotherapy proclaiming its cytotoxic status, warning against human interaction with its contents unless taken intravenously. I wheel my new companion to the shower and imagine how ridiculous I look as I attempt to wash. It accompanies me to bed at night, sort-of-silently yawing away as it slowly infuses bleomycin or other goodies. Mobility is a tad hampered. At one stage of my stay in the ward, there was mention of “bed rest”, but my legs are tight and need a stretch. I ask if I can go for a walk. I have spotted other in-patients lapping the ward, enjoying what limited exercise they can, and I am jealous. The oncologist who is looking after me has been keeping a close eye on things, but he eventually assents. Finally, I am going to stretch my legs again. I am grateful for such small mercies. There is only so much time you can idle away on your smartphone or laptop. In fact, my vision was a little blurred earlier today, as if someone had fired fifteen consecutive camera flashes at me. Maybe I have been looking at a screen for too long. Yes, I could do with doing something else.

I abandon my laptop at the side of the bed. Gingerly, I venture from my room to the corridor. Room 13. Unlucky for some. (Someone in the hospital kitchen is obviously superstitious, as my menu card often comes back with Room 13 amended to Room 12A.) I must look a sight, as I plod slowly into the corridor in a dressing gown and big, floppy slippers, trundling my trusty IV stand beside me. I smile as I pass one of the young auxiliary nurses. She smiles back, perhaps wondering whether I am allowed to be out of my room, but doesn’t say anything. If she did, I could set her mind at ease. I am fine. Well, except for this massive bag of chemo. But apart from that, I am fine. My oncologist said I could go for a walk.

After navigating two of the four limbs of the ward corridor, I reach the common room. I have not been in here yet, so I peer in and look at the assortment of sudoku puzzles and books that I may enjoy in future. I take a moment’s rest. Yes, I am feeling fine, for a minute there I lost myself. I am sure it is nothing. I will finish my lap, which is suddenly the most important athletic event of my life. The Edinburgh Marathon has nothing on this.

I plod on. I pass the reception and begin the fourth and last limb of the oncology ward lap. I slow down. Wait, I am feeling a bit woozy. I can see those shiny flashes again. I ponder briefly that I have never fainted before.

I am on the ground. I don’t remember getting there, but I am lying horizontal in a hospital corridor. Someone is shaking me. The standard first aid questions are being fired my way. I am in pain. I am struggling for breath. Actually, I can’t breathe. Fuck, I can’t breathe. There seems to be an entire drum corps inside my ribcage, beating my chest in something that vaguely resembles a rhythm, but I am completely lacking the quiet rhythm of breathing. It is said you only notice the lack of air when you can’t breathe. I can confirm this is true.

“I can’t breathe.” I am not too sure who I am speaking to, but I think it is the senior charge nurse, who has adeptly put me in the recovery position.

“How much pain are you in? On a scale of one to ten.”

“Um, six.”

Six? Macho idiot. Why did I say six? I mean ten. I am in more pain than I have ever been in my life. It hurts. My chest is tighter than an over-tuned snare drum. I don’t know what to do. I can’t make it better. Can someone make it better?

So this is what it is like to be in an episode of a hospital drama like Casualty. People swarm around me. An Asian doctor who I have spotted around the ward is animatedly shouting instructions about what should be pumped into me. I have no idea what he is saying. A Scottish doctor I don’t recognise slips some kind of gizmo on my chest. I later discover it is a portable ECG machine, to check my heart.

“His left ventricle’s empty,” the new doctor announces.


That’s not good.

Aah, fuck. Fuck fuck fuck fuck fuck fuck fuck fuck fuck.


Why is one of the four chambers of my heart empty? I mean, I have a rogue testicle, not coronary issues. I was going to sail through this chemotherapy and get better. What exactly is going on?


Now what?

“We’re going to need to lift you up onto a trolley, Malcolm. Is that okay?”

At this point my English reverts to its best Johnstone High School vernacular.

“Fucking go fur it.”

Hilarity seems to ensue amongst the nurses at my erudite instruction. I stifle a chortle myself. If it wasn’t so sore it would be funny. Actually, it still is funny. And bizarre. Also bizarre is the fact that I seem to sprouting cannulas on my right arm, as people seek access to my bloodstream. The PICC line on my left arm has been decoupled from chemotherapy. I am hoisted by my own petard onto a trolley. Or maybe I was hoisted by a bunch of nurses, I don’t really recall.

Shit, Neil is supposed to be coming to visit me this afternoon. Will he still be allowed to visit me? Actually, maybe I should concentrate on not dying just now. Neil can wait. Sorry, chief.

“We might need to cut your dressing gown, Malcolm. Is that okay?”

I assent. I may have assented with a strategic swear word. I am wheeled back to Room 13. Unlucky for some.

“Watch out for his laptop!”

Hah, now I know why the nurses and cleaning staff were moaning at me to keep my room tidy, in case something like this happened and they had to wheel me about the ward. Something like this was never going to happen though, was it?

I swear and suggest to the nurses that the laptop is not a top priority for me.

I am positioned back in my room. People continue to swarm around me. A young medical student claws at my feet, seeking a vein for some reason she knows and I can only guess. The curtain is drawn to prevent prying eyes looking in. I mull over how much of a scene I have made in the ward and feel guilty.

“Malcolm, we are going to need to put a catheter on you, is that alright?”

“My good lady, if you can find my decidedly non-tumescent penis at the moment you will be doing very well. Assuming so, if you think a catheter is necessary I consent to the exercise of your good judgement.” Is what I should have said.

In actual fact, I think I suggested this would be fine in slightly more primeval terms. I may have uttered another swear word.

“Okay, that is you hooked up, sorry I had to do that.”

Sorry? Seriously, I don’t need an apology. As a recently diagnosed testicular cancer patient, dignity is not high on my list of priorities right now.

I flit in and out of consciousness in Room 13. I finally wake up properly, regain my senses and take a look around. The crowd of people around me seem a bit calmer. The Asian doctor from earlier is no longer shouting instructions, but for some reason he is applying pressure to the crotch of my left leg. I make a mental note to ask about this later. Bruising on my right arm is beginning to form. I have the biggest cannula I have ever seen next to right elbow, strapped down with a heck of a lot of dressing, designed to keep it in place whilst I sweated profusely mid-collapse.

Other stuff happens around me. My mum walks into the room. It seems she was called by the hospital to come in. Fuck. This must have been serious. But at least she has been allowed to come in, that must be a good sign. My dad has dropped everything and is driving up from Renfrewshire to visit. Neil is told to drive back to Elgin and call another time. Visits from Dave, Marsaili and Victoria are postponed indefinitely. At some point, the doctor stops being interested in my inner thigh. (Apparently an arterial blood sample had been taken from my left femoral artery, and the pressure was applied to stop bruising, meaning there was actually a sensible reason for this unexpected attention to my left groin. Unfortunately because of all that was happening to my right arm they were unable to apply pressure where another arterial stab had taken place, hence my forearm turned a nice shade of purple.)

I later discover that I was found collapsed by a pharmacist before the combined expertise of Aberdeen Royal Infirmary was deployed to keep me alive. I was first treated for an anaphylactic shock reaction to my chemotherapy treatment, but this was not the issue. I was actually having a massive pulmonary embolism, thanks to a wee blood clot having a massive impact on my system. A dose of clot-busting medicine dissolved everything in my bloodstream that needed dissolved, and then some. Every wound on my battered body reopened. Blood seemed to pour out of me. I spent that night with a Tena bed sheet wrapped around my left arm as my PICC line dripped non-coagulated liquid. Weird. I also spent the night in the High Dependency Unit, which was, shall we say, interesting.

But I was told this was a good cancer to get? I was quoted survivability statistics in the 90s, when expressed as a percentage. You mean to say cancer isn’t a cakewalk?

Apparently not. My chemotherapy is suspended. I am hooked up to oxygen, even though this may cause complications when combined with the bleomycin chemotherapy. Less importantly, people who were previously texting me silly jokes to keep my spirits up wonder why I am suddenly feeling stand-offish. I don’t know what to tell them, but mainly I want to tell them to back the fuck off. This is going to be a long journey, isn’t it?

I speak to my oncologist. He had not been planning to see me tomorrow. Now he is. Yeah, this was quite serious really, wasn’t it?

That was exactly one year ago. My chemotherapy restarted after a two day respite. Thirteen and a half weeks of chemotherapy, eight hours of surgery, nine months of blood-thinners and one IVC filter later, I am just about back to normal, whatever normal is. So why have I written this blog now?

I don’t know, but I wanted to. Maybe I want people to understand that cancer treatment isn’t always something that you suck up and then get better. This was the day the shit got real, as I understand the cool kids say. Some people still speak to me and say supposedly helpful things like, “I knew you’d beat cancer!” without having any idea what went on and just how small a role I played in any “victory” that took place amidst incidents like this one. Maybe I want people to understand some of the complications that can happen. Maybe I want you to appreciate how amazing the staff at places like ARI can be when reacting to a crisis. Maybe I am a narcissist who is delighted to still be able to write. Maybe I have realised life is a beautiful, fragile thing that can be snuffed out so quickly and you had really better do the things you love when you can and tell the people you love that you love them when you can, and perhaps this blog will help you realise that too. Maybe I want you to know that those bright flashes I saw before my ill-fated walk and attributed to overuse of technology were actually a warning that there were blood clots in my system and I should have told the doctors about it. Maybe I want to remind folk that issues relating to the Scottish/UK constitution aren’t always as important as your own constitution, especially as I would not have had blood clot issues if my rogue cell division had been caught sooner. Or maybe I just had to get this off my chest. My gloriously normal, not-at-all-tight, chest, which seems to contain a heart and lungs that just about work.

Neil visited me the following week. I still owe him some petrol money for his round-trip from Elgin to Aberdeen.


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Land Reform in Review – Aberdeen Symposium

The King once suggested that we might all benefit from a little less conversation and a little more action. As is well known, the King in question was Elvis Presley. What is less well known is that he was talking about land reform in Scotland. I understand the catchy slogan, “Less conversation, more legislation!” was dropped from an earlier draft of the song: who knows what innovative land laws might have been triggered if that had been retained in the final version?

Okay, maybe that is a stretch, but maybe I got you interested in a potentially dry subject matter. What is true is that the sentiment expressed by Presley can materialise in relation to land reform, as evidenced by this tweet from historian and land reform activist Jim Hunter. His wry observation, “One of these days we might stop talking and actually DO some land reforming”, was in response to a tweeted advert for a symposium about the Final Report of the Land Reform Review Group at the University of Aberdeen. I am fairly confident he was not criticising my employer for having the temerity to host another land reform talking shop, but just in case he was it is worth noting (to adapt a recent Scottish Labour slogan) that Scotland is on pause at the moment, insofar as legislation at the Scottish Parliament is concerned. There will not be a new Land Reform Bill at Holyrood until comfortably after the independence referendum on 18 September, so if there ever was a time to riff around something with impunity, now is such a time.

The format for the event was simple enough. I was an adviser to the LRRG, hence colleagues and I felt I was an ideal candidate for chairperson/organiser rather than a potential speaker. I then sought out a team of speakers, calling on colleagues from the School of Law, advocates and solicitors to offer insights on any comment-worthy area of the Report. The topics selected were: the law of succession (more commonly known as inheritance); common good land and ownerless land; planning law; residential tenancies; and capping the maximum area that can be held in a single beneficial ownership. These will be looked at in turn below, but it should be stressed that this left an awful lot of ground covered by the LRRG uncovered at the symposium. Matters such as State Aid, potential fiscal tools, Crown rights and the acceleration of migration of land titles to the Land Register of Scotland were not addressed. Reform of agricultural holdings was judiciously avoided (as it is the subject of a separate review). Even with that restricted approach, speakers still found plenty to speak about.


Professor Roderick Paisley of the University of Aberdeen began the symposium. He opined that the Report as a whole was thoughtful and thought provoking, noting that there is no suggestion in the Report of the general abolition of any right to succeed to land on the part of private individuals, or indeed a wider attack on the institution of private ownership of land: “We are not dealing here with the jurisprudence of the Russian or French Revolutions.”

The proposal at issue here is to tweak the law of succession, so as to equalise the treatment of moveable and heritable (immoveable) property. In Scots law a spouse/civil partner and any children of a deceased person have a right to inherit part of the moveable element of the estate (perhaps a car, investments or a portrait) even if the deceased has made a will that tries to cut such people out of the inheritance. Curiously, these are called “legal rights”. Legal rights do not apply to heritable property. This means there is no such guaranteed right to a fixed share in relation to land (and any buildings and most flora attached to land). As such, a landowner can make a bequest relating to land, and (assuming the landowner has full mental capacity) that last will and testament will indeed be the last word on the matter. That is the current position, but at Part 2, Section 6, paragraph 20 of the Report, this recommendation is made:

The Scottish Government should, in the interests of social justice, develop proposals in consultation with the Scottish Law Commission for legislation to end the distinction between immoveable and moveable property in Scotland’s laws of succession.

It can be noted that this reform would be consistent with past work of the Scottish Law Commission and would not seem to engage any ECHR issues. (The right to leave a will is not covered explicitly in the ECHR, but respect for private and family life under Article 8 and recognition of a right to possessions in Article 1, Protocol 1 is apparent and that would cover a general power to bequeath property on death.) It can also be noted that on 14 August 2014 the Scottish Government released a consultation on “Technical Issues Relating to Succession” (relating to rather unsexy matters like private international law and bonds of caution (i.e. sums of money) that some executors need to lodge). This less controversial reform might be clearing the way for more noticeable reforms in the future, but that is speculation.

What the report does not do is detail the mechanics of the proposed reform. In Professor Paisley’s view, this is not a problem, and the proposal to develop reform with the Scottish Law Commission was a “very well judged recommendation”. Paisley then set out some observations about how practice might develop in future if legal rights were extended to immoveable property, imagining a future where anti-avoidance measures may see increased uses of trusts (including “pour-over trusts”) and lifetime gifts (especially as it is tricky to imagine how any measure that sought widespread clawback of near death transactions could ever work practically). With the latter, a degree of faith might be placed in younger generations, in which regard Paisley highlighted the Biblical parable of the Prodigal Son.

Next to address succession was Viktoria Wahle of Stronachs LLP, with specific reference to the organisation of agricultural businesses. At the moment, estate planners must be mindful of the risk of heritable property becoming moveable (perhaps when it is transferred to a company or a partnership) and indeed the opportunities of converting moveable property into heritable property (normally by investment in land). On one level the reform envisaged in the Report would simplify matters and do away with this potential trap/opportunity. On the other hand, existing farming practice would be affected, and the reforms might lead to is an increased prevalence of: 1) voluntary lifetime renunciation (by a person who could claim a share, thus allowing a farm to remain whole); and/or 2) farmers having to establish an alternative means of meeting the value of legal rights claims; and/or 3) putting the farm into trust or into a company and dealing with shareholdings appropriately. All of these would be very circumstantial and (with that in mind) Wahle also queried whether there might be the option to pay any “heritable” legal rights in instalments.

Ownerless land and common good land

The third speaker was the advocate Robert Sutherland of Terra Firma Chambers. His first subject was “ownerless land”, that being the term adopted in the Report. This was what the Report noted at Part 2, Section 7, paragraph 10:

The Review Group considers that the expansion of land registration is likely to result in surviving examples of common land and commonties coming to light. The Group recommends that these distinctive forms of land tenure should be identified and safeguarded as part of modernising Scotland’s system of land ownership.

“Ownerless” is an interesting word to use, especially as there is not much of Scotland’s terrain that is likely to be completely ownerless. There may be some common land and commonties remaining in Scotland (those rare areas being specifically identified as worthy of protection in the Report, at Part 2, Section 7, parahraph 11), but what of land that an owner wants shot of? Normally the Crown has a right to abandoned property in Scotland, but – to add another question – what happens when that land brings onerous obligations? This is a topical area land, in light of the SEPA v Joint Liquidators of Scottish Coal case (2014 SLT 259, when there was an unsuccessful attempt to disclaim environmentally sensitive land). As Sutherland pointed out clause 48 of the Community Empowerment Bill appears to deal with abandoned land (by giving communities a right to acquire land that is “wholly or mainly abandoned or neglected”), but such land is not technically abandoned in the sense that property lawyers would use that term. Indeed, that bill is to do with land that is neglected or underused, not land where an owner has actively sought to walk away, so it expressly does not deal with Crown rights to bona vacantia (certain unowned things) or its role as ultimus haeres (the ultimate heir).

Sutherland then addressed the rather fraught issue of common good land, with reference to sections 73-75 of the Local Government (Scotland) Act 1973 which deals with disposal and appropriation of such land by a local authority. No attempt to analyse that regime will be made here, other than to note it has played a role in relation to school projects at Portobello and Barrhead. The Report did not directly address this issue, except within a wide call for modernization, noting the following at Part 3, Section 14, Paragraph 21:

The Review Group considers that the position over Common Good lands should be improved to ensure they are adequately safeguarded and appropriately managed. The Group recommends that a new statutory framework should be developed to modernise the arrangements governing Common Good property.

Some of this is to be addressed in the already mentioned Community Empowerment Bill. If you wish to contribute to that process, you can respond to the Local Government and Regeneration Committee’s call for written evidence.

Planning Law

Alasdair Sutherland, also of Terra Firma Chambers, was the next to speak, on the not insubstantial matter of planning law. As with the niceties of common good law, no attempt will be made to analyse planning law as a whole here, but Sutherland highlighted the following from the Report (Part Five, Section 20, paragraph 34):

…while the planning system has significant power in preventing unwanted development…its ability to generate desirable development, at least on its own, is really quite limited.

Nothing to see here, then. Well, not quite. There are a number of proposals in the Report that may form part of the urban renewal mix, with the potential new tools including further community rights to: register interest in land (as per the current Community Empowerment Bill), a right request a Compulsory Purchase Order; a new local authority power to issue a compulsory sale order (i.e. force a landowner to sell) and the potential for Urban Partnership Zones. Alasdair Sutherland ended his presentation with some muses about alternative dispute resolution methods and protective cost orders, as potential further innovations Watch this (urban) space.


Land reform might conjure images of crofters or agricultural tenants, but it is equally applicable to the private rented sector. This was demonstrated by Dr. Douglas Bain of the University of Aberdeen and Catherine Bury of Ledingham Chalmers, who considered the proposed introduction of longer and more secure tenancies in the private rented sector. This was covered in Part Five, Section 22 of the Report, with paragraph 24 providing the following:

The Review Group considers that, to address housing need and the changing nature of the private rented sector, a change is required in the nature of tenancy arrangements within the sector. The Group recommends that the Scottish Government introduces longer and more secure tenancies in the private rented sector.

Channelling Bob Dylan’s song “Dear Landlord”, Bury and Bain gave an overview of the post-WWII tenancy regime, which finally pitched from largely pro-tenant legislation in 1984 to the introduction of the current landlord-friendly legislation in 1988, which gave is the prevailing short assured tenancy. With increasing regulation of private sector landlords (think HMOs), and two very important new statutes from this very year that affect matters leasing (The Housing (Scotland) Act 2014 and the Tribunals (Scotland) Act 2014), perhaps we are already seeing a re-balancing towards the tenant. Will the recommendation of the LRRG provide the impetus for the see-saw to tip back in the direction of the tenant completely?

An upper limit to ownership

Saving the best, or perhaps the most controversial, for last, Dr. Michael P G Smith of the University of Aberdeen critiqued the most eye-catching proposal of the LRRG, namely that there should be an upper limit on the amount of land in Scotland that can be held by one owner or single beneficial interest. In addition to his legal knowledge, one of the reasons I was keen for Smith to participate was to offer a counterbalance to the Report, as he set up his talk as being from the perspective of a lawyer advising an existing landowner client (and considering what steps that landowner might wish to take). He began his talk with a disclaimer that he was not representing Scottish Land and Estates, although his talk had been informed by them.

The following text is found at Part Six, Section 24, Paragraph 29:

The Review Group considers that there should be an upper limit on the total amount of land in Scotland that can be held by a private land owner or single beneficial interest. The Group recommends that the Scottish Government should develop proposals to establish such a limit in law.

No steer is given as to what this upper limit should be (either as a percentage of Scotland or a certain amount of acres). It is also silent as to whether or not the cap should be retrospective: Smith rather candidly admitted the cap would be of nugatory effect if the

This is what Scottish Land and Estates said about the proposal.

We cannot see what the group is really trying to achieve with recommendations such as capping the amount of land anyone can own. The group is confusing the scale of ownership with appropriate land use. Someone owning 20 acres around a village can have much more of a monopoly of control over community land use in the local area than someone with thousands of acres of hill, rock and bog.

Some of those themes were addressed by Smith, who also added a strong critique about some of the assumptions that seem to have been made in the Report and perceptions about monopolies. [Chairperson’s note: European competition law prevents the abuse of a dominant position in the marketplace. No comment is made here as to whether or not this is an exact analogy for Scotland’s land.] Smith also pondered what sort of compensation might be payable for land, noting (quite correctly) that any proposal to offer nil or low compensation to landowners facing a deprivation (i.e. a loss of some of their property) would be open to challenge on ECHR grounds.


The Report is not legislation, nor is it even a commitment to legislation. What it is is fuel for legislation. Prior to that legislation, there will be a little conversation, even if Elvis Presley would prefer to move straight to the action phase.

At one level, if the LRRG had provided absolutely nothing to talk about, it would have failed. Whilst the LRRG’s Interim Report may have been criticised by some for not proposing very much, the Final Report has succeeded by the simple fact it has stimulated dialogue. It now remains to be seen what will happen in terms of representations to, and legislation emanating from, the Scottish Parliament. Perhaps the University of Aberdeen will play host to an event reflecting on a new Land Reform (Scotland) Act in the not too distant future. Until then, I hope this symposium has added to the conversation. Do feel free to add further to the conversation by commenting below.

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Community empowerment and retention – some thoughts from St Kilda

Earlier this month, I went to St Kilda, an archipelago west of the Western Isles. It was pretty amazing and words do not do the place justice, so here are some photos.

DùnBayHigh StreetStack

In one of the photographs, you will note a number of ships. For an island far off the west coast of the Scottish mainland, and indeed the west coast of Harris, it was quite a busy place. Tourists, scientists, conservationists and military personnel were all busying themselves on Hirta (the main island of the archipelago) when I arrived. But there is no indigenous population there. The last thirty or so native inhabitants evacuated in 1930. (An earlier mass migration in the 19th century explains why a district of Melbourne has the name of St Kilda.) There is a semi-permanent population on Hirta, in terms of military personnel and National Trust for Scotland staff, but there are no indigenous people left. Their way of life, subsisting on (inter alia) sea birds, not to mention their legendary climbing skills to catch those seabirds, have disappeared.

With that uniqueness and far-flung-ness, I think a strong argument can be made that they were the last [static] indigenous group in the British Isles. If they were still around today, the UK would be under international obligations towards them, in a manner not dissimilar to the Inuit in North America.

Alas, the UK government did not offer any particular support to the islanders to prevent them calling for evacuation, when perhaps they could have offered permanent roles to the menfolk (yes, it probably would have been men, back in the day) in military or meteorological circles to make the indigenous community just a bit more viable, and so the community has gone, never to be recovered. Ochone, ochone, and other nostalgic Scottish musings. (I am aware this paragraph is a gross over-simplification, but I want to keep this blog short.)

A serious point relating to the present day might still be made. Retaining a community is much easier than replacing a community. That is why land reform in the Western Isles is such a topical issue. On my trip to the Western Isles, I visited the community lands of the North Harris Trust. They are involved in a number of projects, such as path development.


They have freed up land for local housing. They are regenerating woodland – in Harris! They are providing employment. All of this would have been difficult, if not impossible, without community ownership.

Community ownership is not a magic bullet. There is no “one size fits all” approach to land management in Scotland. That being the case, it does give something to think think about. Even measures short of outright ownership might be enough to re-energise a community. Which takes me back to St Kilda. Sure, I went there on a cracking day (indeed, the boat would not have left Leverburgh without a promise of clear skies), so my one experience of St Kilda will bear no resemblance whatsoever to a winter on a north Atlantic archipelago, but a combination of the hardships St Kildans faced and a lack of support means that that community has gone forever. That makes me sad. To prevent me being sad in the future, I think it would be wonderful if we could protect and encourage the communities that remain in Scotland’s fragile areas in whatever way we can.

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Some thoughts on unsolicited campaign emails

On 1 July, I received an email to my work email address, with this header:

better together

My interest was piqued. I began reading:

Dear colleague,

In less than three months, on the 18th September, Scotland will take a decision with enormous and irreversible effects upon our universities. It is essential that we get this right.

My name is Andrew Miller, and I am a former Principal of the University of Stirling. I am writing to you because I firmly believe that we can achieve more together as part of the UK than we ever could apart. Having looked at the evidence, it’s clear that the best and brightest future for our world-class universities is achieved as part of the wider UK.

The text continued, inviting me to read a report and “warmly” inviting me to join Academics Together. How nice.

On 7 July, I received another email from Rob Murray, beginning “Dear Supporter,” inviting me to become a telephone ambassador for Better Together, with the following header:

blether together

Now, it is always nice to feel wanted, but there were a few issues with these unexpected communiqués. First, I recently joined Academics for Yes. My interest in Academics Together is limited. Secondly, and most importantly, I did not sign-up to receive any campaigning emails. The emails were unsolicited. This could be a [legal] problem.

Before I head off on a legal muse, it is only fair to follow Sir Arthur Conan Doyle’s school of deduction and consider why I received these emails. I have already discounted my own volunteering. One option is I might have been sent them in error. Another is someone else may have signed me up: I have fond (ahem) memories of a friend signing me up for regular fromage email updates from a French cheese purveyor. Très drôle! All of these possibilities seem remote when the Twittersphere is consulted, as per this tweet and the replies to my tweet about the issue.

Is there a legal problem? My work email address is public. You can find it via my blog or my employer’s website very easily. I doubt there is a Data Protection issue in that regard.

What about the Information Commissioner’s Office guidance on spam emails? I refer to that because The Privacy and Electronic Communications (EC Directive) Regulations 2003 are UK-wide, as is the ICO’s role in relation to that legislation. Those rules can, it seems, relate to election materials and (it can be reasonably inferred) referendum materials in the same way as it does to sales-pitches or scams. The authority for this is (ironically?) a precedent involving the SNP. The SNP tried to argue political matters were not covered but a 2006 decision ruled against that line of argument, as explained in further ICO materials (at paragraph 12 of the detailed guidance).

That detailed guidance of the ICO also makes reference to an earlier Better Together campaign, at paragraph 35:

If the organisation purchases email addresses or mobile phone numbers from a list broker with the intention of sending an electronic communication to those listed, it needs to be sure that the individuals have consented to receiving these forms of contact from it. Better Together, a campaign group in the 2014 Scottish independence referendum, signed an undertaking in November 2013 that they would ensure any future electronic marketing was only sent to people who had consented to receiving this type of message.

What next? That is a good question. As things stand, I have not sent “unsubscribe” to the originator of any of the emails, because: 1) I did not subscribe in the first place; and 2) I am intrigued to see what else comes my way. I have not contacted any branch of the information police yet, but I would be keen to hear if anyone out there has any thoughts as to what the next steps could or should be.

Most importantly, if anyone from either campaign is reading this, please think very carefully before firing off unsolicited communications. Sure, you might want to win the referendum, but (in the same way as guerilla stickering is to be discouraged) please keep the campaign within the law.

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Lawyers for Yes

Imagine, for a moment, that the campaign for Scottish independence is actually a night in a public house. Picture the scene of a few regulars, who hold court and offer pearls of wisdom to all and sundry on the benefits of Scottish sovereignty. Every so often, others seek to join their group. They are made welcome, but such a newcomer can be in a precarious position. They may try to impress these pub-based sages and over-compensate in the process, or desperately try to catch up on where the conversation has been and (most precariously of all) try to catch-up on the regulars’ “enthusiasm”. I suppose I am such a newcomer, having nailed my Scottish colours to the mast fairly recently, so I will be careful not to try to out-drink those regulars, but I can offer one opening gambit that might impress them. I have a new post over at Academics for Yes, which I quote below. Enjoy.

A new organisation called “Lawyers for Yes” is now active. Its declaration has the support of people from all walks of Scottish legal life: solicitors, advocates, solicitor-advocates, academics and others engaged in the practice of law. I am a signatory, as are 110 others (as at 22 June 2014). The homepage has a number of contributions explaining why some of those signatories believe:

independence will lay down the foundations for a fairer, equal and more democratic society in which the fundamental rights of all citizens are enshrined in a written constitution and protected by a constitutional court as befits a modern democracy.

Those are powerful words, which might be expected when you consider Scots solicitors have on occasion been referred to as “writers.” Other than powerful language, one might wonder what a group of lawyers bring to the debate. Two thoughts are offered here.

The first relates to the initial membership of the group. Unsurprisingly, the first thing lawyers might get in a tizzy about is the definition of “lawyers.” A quick glance will reveal that not all signatories are qualified to practise law in Scotland at present. That may be so, but the diversity of contributors can equally be characterised as something to celebrate. From trainee solicitor to eminent Queen’s Counsel, these people have considered the topic and think that independence is a positive step. Lawyers for Yes cannot be criticised for having a view centred on Parliament House or dominated by any particular age and stage of a legal career path. It reflects a broad spectrum of legal society.

A second thought relates to the perspective lawyers can bring to bear. At one level, the formation of Lawyers for Yes is no more or less exciting than the launch of a group of crofters or indeed academics for Yes. At another, it is much more than that, when you consider the nature of some of the purported obstacles to Scottish independence, such as EU membership for an independent Scotland. People might vote No for a whole variety of reasons, but if someone does not vote Yes on the basis of an apparent legal truth the Yes campaign will suffer. This is why Lawyers for Yes has a role, in that it shows a number of legal minds think such legal problems are either: a) not problems at all; or b) perfectly surmountable in the event of a Yes vote.

Rather than consider the ins and outs of the legalities of an issue like EU law here, I am going to become a little theoretical. What is law? One definition might be a system of rules that governs a society at any given time. And what does law do? Law both shapes and reflects the society it relates to. The rules that exist can and do shape behaviour, but when circumstances change and the law no longer reflects that society it can and must change. It is fair to say that a Yes vote would be a huge declaration of intent by Scottish society and any mature legal order ought to be able to react to that. The simple fact that lawyers are comfortable with the idea of independence despite EU concerns or other constitutional niceties is an effective counter-balance to anyone who speaks of apparently certain consequences to the independence vote.

What do Lawyers for Yes not do? There are no substantive proposals about a new Scottish constitutional order, beyond noting that the existing legal system and legal institutions mean Scotland is perfectly capable of adapting to independence. In that regard, maybe it is not a radical intervention, but it certainly adds something to the independence debate.


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