Some reflections on the #indyref

That referendum on Scottish independence from the rest of the UK, eh? I hear Scotland voted to stay in the United Kingdom of Great Britain and Northern Ireland. Plenty has been written about that result. For my part, I pitched a small offering about the Scottish Independence Referendum Act 2013 into the mix. I am reticent to erode an already well-trodden path with more of my meanderings (especially when it is too late to affect the result), but I do have a few thoughts that I think are worth sharing.

If you want to avoid my navel gazing, skip forward four paragraphs to the section headed, “What now?

Reflections on the result

As readers of this blog will know, I voted Yes. I declared that I would do so in advance. This is the first time I have publicly backed a political horse. On the back of the result, it might seem that I chose the wrong race in which to do this, but now that the campaign is over I can note with a degree of impunity that I did not actually think Yes would win. Okay, I had the odd wistful wonder that the Yes campaign might just pull off a win, but I generally stuck to the line that I thought the result would be a narrow No (in oral conversations, if not online). Why did I not publicise my thinking? Funnily enough, I wanted Yes to win, hence why I made my public declaration of Yes in the first place, and I did not want to seem downbeat about the chances of a Yes victory. On one view, maybe I should have been downbeat, to encourage a final drive for votes as opposed to what some might characterise as premature celebration, but so be it.

Am I disappointed with the result? Yes and no. Why yes? Because I wanted Yes to win. Why no? Because democracy within the territory of Scotland is more important to me than Scottish independence. By a not insignificant margin of 383,937, more people voted to stay in the UK than [re]form an independent country. I respect that.

Returning to my prediction as compared to the actual result, is 45% a narrow No? Well, naturally it could have been narrower – thus ends my amateur psephology – but even when some of the more optimistic Yes polls came out towards the end of the campaign I was never quite convinced the Yes campaign would win. I had a nagging thought that referenda to overturn existing arrangements often struggle, as evidenced by the recent AV referendum (on voting reform) and the less recent referendum on the UK’s place in Europe. (It will be recalled that the UK passed the European Communities Act 1972 before giving voters a chance to vote on it a few years later. For some reason Scotland was not allowed a few years of independence to make a success of it before going to the polls: I cannot think why.) I was also aware of the Quebec example, where there was a drag back to the status quo come polling day. There is also the fact that those in power, and their pals, tend not to cede power without making a bit of a fuss: moan about the media all you want, but it was ever thus. All of this meant Yes had to be doing really well in the polls in the days before 18 September, as opposed to just quite well or indeed neck and neck.

Regarding that point about Scotland perhaps being gently encouraged to stay in the UK by, how can I put this, a sympathetic press and/or lovebombing and/or full-on fearbombing: I have a confession to make. Some of the “Project Fear” type stories actually started to chime with me. In my Yes blog I noted that the NHS and human rights were my two weak points, but then stories about pensions (particularly with regard to EU cross-border rules) and mortgage costs started to pile up. I am not so foolish as to pretend these would not have had the potential to affect me. I know a thing or two about mortgages, also known as standard securities, as Scots property lawyers stubbornly but correctly call them. Without exposing my own finances in too much detail, I own land in Scotland, such ownership having been financed by secured borrowing. A spike in monthly repayments would affect me and I can understand there may have been a smattering of truth in articles like this Telegraph piece. One curious reaction to this was to think, “Och, if it really is going to be a narrow No I may as well still vote Yes.” I.e. Part of me did want to give the effing Tories a kick (or at least be part of the electorate that registered their intention to do so). (Granted, this could have left me in the ridiculous position akin to a dog who actually catches a car, i.e. if Yes had won I would suddenly have been faced with the potential of higher monthly repayments, but so be it.) I was also willing to take a bit of a punt that the overall mix in iScotland would have been better. Many others did not take that punt. I respect that.

What now?

To coin a phrase, we are where we are. The electorate in the referendum find themselves in a territory where a lot of people wanted X and a lot of people wanted Y, which territory is within a country where a lot of other people might have wanted X or Y but did not actually get a vote. We need to get on with it.

I am not going to join any calls for a post-referendum reconciliation: as noted by Professor Christine Bell on a recent BBC programme, a reconciliation implies a wrong, and I do not see many wrongs. That being the case, I do have two key observations for my fellow Yes voters.

  1. Don’t respond to all problems in the UK with, “I voted Yes!” To draw on the wisdom of The Simpsons, it’s about as useful as proclaiming, “I voted for Kodos!
  2. Similarly, if a No voter (or indeed a secret voter, they exist too) has a legitimate moan about something, that is as legitimate as any moan a Yes voter might have. To deny that would be approximately as empathetic as me trumping anyone that grumbles about a minor health ailment by pointing out that I have had cancer. It might be true, and you can probably mention it as a nuclear option once in a while, but it does not really help matters.

To an extent I am falling into my own trap here. If there is no wrong to reconcile, why am I trying to put down some ground rules? And by whose authority am I doing that? Both of these are fair questions. Ignore me as you see fit. After all, I backed the losing horse in the referendum race. Although perhaps I should not use the terminology of losing and winning. The most obvious winner in the referendum was the referendum itself and the process within which it operated. Let us bottle some of that enthusiasm and move forward.

As for the future of the independence campaign, there are many interesting things that I could write here. I will restrict myself to one or two political observations and one personal observation.

First, politics. There is a UK general election next year. I cannot even begin to count the various permutations of that election. Amidst all of those, I do note that the Sunday Herald (in the immediate post-referendum edition) carried a report about the possibility of putting “Yes Alliance” candidates forward in Scottish constituencies for Westminster. The effect of channelling all votes for a cause to one candidate can be huge: it will not always lead to victory, as evidenced by the 2010 result in Fermanagh & South Tyrone, but the fact a single Unionist candidate came within four votes of Sinn Féin in that constituency is staggering. With the next general election in mind, the odds of Labour, the Liberal Democrats and the Conservatives stepping aside for each other in Scotland are next to nil. If the Greens, the SSP and the SNP can put forward single candidates in each constituency on a united front that would make for a captivating dynamic.

On what ticket would such candidates campaign? That is where it gets really interesting. I think it would be ill-judged to campaign on a bald pro-independence platform in a general election that follows a referendum that came out against independence. Whatever the Smith Commission might come up with, independence is the one thing that is off the table. Sure, Salmond might not be the First Minister for much longer, but I think the SNP should assiduously stick to his line that the referendum would settle things for “a political generation”. Indeed, the only people who have it in their gift to change the independence timeline from a double digit to a single digit number of years are the parties who campaigned for the Union. Such a change is not likely to be deliberate. That is to say, it would take them contributing to a situation where somehow things change, perhaps by:

  1. the Scottish Parliament being abolished (very unlikely);
  2. the UK leaving the ECHR (unfortunately looking a bit more likely, but probably still erring on the unlikely side of things);
  3. the Smith Commission proposing absolutely nothing of note, notwithstanding “The Vow” and any subsequent petitions (pure speculation, the Commission needs to be given a chance); or
  4. the UK dragging Scotland out of the EU after a UK-wide referendum when Scotland voted to stay (unlikely, but what do I know?).

On that basis, I suppose the ticket of the Yes Alliance, or whatever it might be called, would be to keep the Better Together parties honest and be ready to react if and when the political environment evolves. Not the easiest thing to change into a political soundbite, but that is not my job.

That leads on to my personal observation. Having dallied in the pro-independence movement just a little, I think now is the time for me to take a step back. As noted, I don’t think it is in any way sensible in the short term to campaign vociferously for an outcome that has been rejected at the ballot box. And who knows, there might be a job for me as a Presiding Officer at a future election. I would not be eligible for that role if I was actively campaigning, as I recently discovered in an object lesson on electoral law.

That is probably quite enough overtly political blogging for me. I will return to droning about matters land reform, law and education. For now at least.

voted-for-kodos

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Notes from the SPEL Conference 2014

As I have matured in years, I have come to terms with not being many things. For example, I am not an astronaut. In less cosmological news, I am not a planning or environmental lawyer. It would be a misrepresentation to hold myself out as an expert in these fields, although I do have some involvement with these areas and my dabbling means I like to try to keep informed. My most recent attempt to do this was to attend the SPEL Conference 2014. “SPEL” stands for Scottish Planning and Environmental Law, so this seemed an ideal conference to obtain my dabbling fix. What follows are some eclectic notes from the day (programme here (PDF)). No apology is made for the rambling nature of my thoughts: hey, it is my blog, after all. I could have kept this stuff to myself, but I might prompt some discussion or you might find something useful herein.

The first speaker was Professor Greg Lloyd of the University of Ulster, who has probably retired in the time between the conference (on 24 September) and me writing it up. (He certainly had an air of impunity when he spoke, noting that he would be an emeritus professor very soon.) The Welshman, who works (or worked) in Northern Ireland, speaking (and, I understand, living) in Scotland brought some very interesting perspectives about devolution to bear. He noted the need for people to plan on the basis that growth might not happen (referring to the work of Sarah Longlands at the University of Glasgow) and the need to manage expectations: for example, he noted the difficulties in trying to get back to normality in times of austerity if the “normality” that is sought is a property led boom. In the Q&A, rather surprisingly (and a little heretically?) he spoke about the nationalisation of land as a possible solution to problems connected with speculation. This was not just the ramblings of a zealot, Lloyd was able to refer to the works of William Ogilvie (formerly of King’s College, Aberdeen) and his (at one point) anonymous tract about land reform. Other names were mentioned, but my scrawled notes from the day defeat even my attempts to decipher them.

Next, John McNairney from the Scottish Government spoke about the National Planning Framework 3 and Scottish Planning Policy (NPF3 and SPP) – noting it was the first time versions of these documents had been brought forward simultaneously. Regarding the former, key drivers were noted (sustainable economic growth, low carbon economy and the like), as was the importance of community for successful, sustainable places, and flagship National Developments were highlighted. As for the SPP, its new presumption in favour of development that contributes to sustainable development was highlighted, although it was queried how relevant this might be given Development Plans must keep sustainable development in mind at the moment. Also highlighted was the new spatial frameworks as to where onshore wind farms 1) will not be, 2) may not be or 3) are likely to be acceptable (the former being “Group 1″ zones, containing National Parks and National Scenic Areas). A later presentation from a local authority employee noted Group 1 designation was all well and good for some, but not if your local authority contained no such zones. The cumulative effective of windfarm development in such an area was also considered, but not exactly resolved.

Bob Reid – a fellow adviser to the LRRG – then gave a provocative talk entitled “Scotland’s Continuing Housing Need”. Reid had another perspective by virtue of his involvement in the RICS Scotland Housing Commission. I will not even try to reproduce some of his detailed charts in prose form, but suffice it to say public sector housing has tailed off just a little bit since the days of Margaret Thatcher. In 2013 Audit Scotland stated that 76% of housing was private, compared to 24% public, whereas at another time in Reid’s career it was 33% private and 67% public (I am sure he will appreciate me noting that he is not particularly ancient). Those figures, and indeed the large private rental sector (11.6% at present), are not necessarily indicative of failures in and of themselves, but they do make for interesting reading when checked against house price and indeed income trends (analysis of such trends being beyond my skill-set). The fact that much of the private housing sector has been financed by bank lending, which lenders may not necessarily have a philanthropic interest in the state of the housing stock, is also an interesting variable. Returning to planning concerns, Reid noted (correctly) that planning works in the margins as a driver for reform: whilst planning might inhibit undesirable development, it cannot always drive things on. Despite that, the compulsory purchase order (CPO) and funding side of things were highlighted, together with the observation that key developments in Europe tend to get things right by ensuring the land comes into public ownership before development. Reid contrasted this with Lloyd’s nationalisation point from earlier in the day, instead suggesting it was more akin to “manhandling”. Finally, from a land lawyer’s perspective, Reid’s call for more up-to-date and transparent information about landownership was noteworthy, and chimes with current thinking at the Scottish Government and Registers of Scotland.

Further presentations followed on, being: an overview of Development Plan Examinations and Planning Obligation Appeals by the Chief Reporter of the Directorate for Planning and Environment Appeals; an analysis of Tesco v Dundee City Council (to do with the interpretation of a policy and its implications for an Asda off the A90 in Dundee); a further analysis of the SPP’s implications for the renewables industry; and an introduction to the work of RTPI Scotland in 2014. If these are of interest to you, I apologise, as I plan to offer no further analysis of these matters here.

One other presentation (by Alasdair Burnet, an advocate with Terra Firma chambers) is also worth highlighting, as it was a case law update considering matters as diverse as: mora, taciturnity and acquiescence (which was relevant in the Portobello Park Action Group Association v The City of Edinburgh Council case, which I wrote about in the 2013 Edinburgh Law Review (£)); protective expenses orders (under the Aarhus Convention, the most relevant cases being McGinty v Scottish Ministers, a recent leg of this saga being available here, and Carroll v Scottish Borders Council); and regarding the habitats and birds regimes (on the latter, see Sustainable Shetland v Scottish Ministers), not to mention the rules for third party intervention in a case. If you want more information on such matters, I am sure the good folk at Terra Firma will not mind me pointing you in their direction. (Robert Sutherland and James Findlay can tell you all about the Tesco v Dundee case.)

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A note on the Scottish Independence Referendum Act 2013

The referendum on Scottish independence from the rest of the United Kingdom took place last week amidst much media coverage. Mercifully, it also passed without much incident, despite some attempts to portray the largely respectful debate as somehow sinister (which I will not give credence by linking to here). That it did so was largely thanks to diligent public sector employees and an army of interested observers, so allow me to put on record my gratitutde to them in this blog.

A smooth referendum was also ensured by the legal regime within which the debate, the poll and ultimately the count operated. The general law of the land was supplemented by the Scottish Independence Referendum Act 2013. That legislation’s impact on the pre-poll period is analysed by Andrew Tickell (aka Peat Worrier) in a recent edition of the Edinburgh Law Review (£). The conduct of the count, and a dismissal of some of the wilder conspiracy theories, is analysed by Doug Daniel in a blog hosted by Wings Over Scotland. A matter relating to postal votes (and the possible analysis thereof at a pre-count stage) is reported in The Herald today. This blog will consider the polling day itself.

A couple of months ago a friend who works for a local authority told me that his employer had some roles available for polling day. Not having any plans for the day itself (except for one property law lecture to students at the University of Aberdeen), I indicated I could be available and was advised to contact someone in the elections team. I did so, and after explaining my own background (law lecturer, solicitor, notary public) it was explained to me that there was a role available as Presiding Officer at a polling station. A PO has to stay at a polling station all day (06.15-22.00), so this did not fit in with my 16.00 lecture. I was told to get back in touch if I managed to arrange cover for the lecture, such cover was arranged and I duly got back in touch (also arranging a day’s annual leave from my full-time job).

In the course of this exchange, it suddenly dawned on me that I had not exactly been backward in coming forward for a Yes vote (either in this blog, on social media or via interest groups). I went into disclosure mode, noting in correspondence that I had put my name to both the Lawyers for Yes and the Academics for Yes declarations.

I was offered the PO role. As regards my disclosure, I was informed that statute prevents a local authority employing anyone actively involved in campaigning for either outcome of the referendum and that this would only be a problem if that had been the case.

I still had a nagging doubt. Life and lawyer experience confirm that nagging doubts are best flushed out before they become massive, horrible, explicit doubts. I thought I should clarify and resolve the situation in advance and put the following positions forward.

  • On the “not campaigning” side, I am not and never have been in a political party, I did not donate to either referendum campaign, and I had (at that point) never engaged in any door-knocking/canvassing or represented either side on any platform.
  • On the “campaigning” side, there was my blog, anyone finding me on social media (including a public Twitter page) so near the referendum would very quickly glean my voting intention, and my previously disclosed Academics for Yes and Lawyers for Yes involvement.

Following on from this, I was informed that it could be construed that I was campaigning for an outcome of the referendum and thus putting me in a PO role might put the local authority in breach of the Scottish Independence Referendum Act 2013. On reflection, I think this is correct, and I should perhaps have ruled myself out sooner: in my limited defence I was not sure how central a role I was to be offered, and after being offered that post I was also distracted by other mundane referendum day matters (like arranging cover for my lecture). Schedule 3, paragraph 10 of the 2013 Act is pretty clear on the point and having encouraged the local authority to take a view on the point I was not going to argue with whatever view was formed.

So what was the net effect of this decision? It shows the referendum was a Unionist conspiracy. No, sorry, what I meant to write was it shows the law was taken seriously. This is as it should be. You will not hear any calls for a re-vote from me.

On a more personal level, I came to something of an #indyref epiphany, in that I thought “Sod it, I may as well do a bit more campaigning”. Health matters had limited my involvement in most things from August 2013 to early 2014 (a fellow Yes campaigner was kind enough to give me a medical line for this…), but I did get involved in the latter stages of the campaign by doing a spot of canvassing and volunteering for a “get out the vote” effort in the Tillydrone and Powis areas on referendum day. The net effect of this final burst of activity will never be known to me, but I am okay with that. Democracy and secret ballots are rather important and I am delighted to be in a state that takes such things seriously. (Yes, there is a potential irony as I did vote for Scotland to not be part of that state, but I have explained why elsewhere.)

On an even more personal level, my non-PO role freed me up to give my law lecture that day.  I think I managed to refrain from making that lecture about the categorisation of things in Scots property law a rallying call for Scottish independence.

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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.

Fuck.

That’s not good.

Aah, fuck. 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?

Fuck.

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.

Cisplatin

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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.

Succession

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.

Leasing

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.

Conclusion

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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