Ruaig an Fhèidh and A1P1 revisited

“The Deer Drive”, to give the English form of the Gaelic contained in this blog’s title, was a nineteenth century event at Pairc on the Isle of Lewis in the Outer Hebrides. Landless and impoverished Gaels were moved to take occupation of and hunt on part of an expanding deer forest. The raid was celebrated in the contemporary Gaelic poem Ruaig an Fhèidh, available in Gaelic and English in Donald Meek’s collection Tuath is Tighearna (Tenants and Landlords, 1995). I did my best to publicise the radical action in a professional journal in May 2011. As important as poetry has been to the Scottish land question, I did this more for my interest in contemporary Scots law, as found in Part 3 of the Land Reform (Scotland) Act 2003.

This statute, passed in the first term of the new Scottish Parliament, has captured the imagination of many commentators, including me. It has also captured the attention of many communities, who in general would wish to capitalise on development and empowerment opportunities, and landowners, who in general will (quite reasonably) not wished to be divested of any assets arbitrarily. Whilst some landowners acquiesced and allowed a transfer (as in Galson, on the Isle of Lewis), one landowner went legal and challenged the legislative scheme. That scheme allows a properly constituted crofting community body (in the form of a company limited by guarantee) to acquire certain croft land compulsorily from the crofting landlord following a ballot of the community members. The land that can be acquired is restricted to crofts (small holdings let on an effectively perpetual basis, subject to compliance with certain statutory conditions), common grazings (which are not actually leased by the landlord to crofters, but crofters in a township can use the land as a “pertinent” of a croft) and certain eligible additional land around those areas.

Fittingly, this landowner challenge occurred after the community in Pairc engaged in a rather modern land raid.

The community’s paperwork has been made available on the Pairc Trust website. The landowner is (mischievously?) known as Pairc Crofters Limited (regulation of company names in the UK did not strike at this more than ambiguous name). The landowner also granted a rather lengthy and not very lucrative interposed lease [PDF] to a linked company called Pairc Renewables Limited, in an attempted avoidance mechanism that was tolerated in the Scottish Land Court but killed by legislative provision, which allowed a community body to also buyout any tenant’s interest in a lease. It is also worth noting that, perhaps cognisant of the landowner’s desire to carefully hold the community to the terms of the land reform legislation, only a small part of the complete package of eligible land was included in the community bid, namely certain land that was undeniably in the common grazings.

As explained in an earlier article, the first challenge was in Stornoway Sheriff Court. This was passed up to the Court of Session in Edinburgh on two devolution grounds, essentially whether the legislation complied with the Scotland Act 1998 (and in turn the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)). At issue were the right to property and the right to a fair trial.

When Lord President Gill was Lord Justice Clerk Gill, he became the first judge to strike down Scottish legislation on grounds relating to the “Protection of Property” provision of Article 1 Protocol 1 of the ECHR (“A1P1”), in the case of Salvesen v Riddell. He delivered the main judgment in the Inner House of the Court of Session today, and he did not repeat that manoeuvre. Together with Lords Eassie and Malcolm it was held that the “fair and reasonable” ballot of the community, in accordance with a Scottish statutory instrument, did not breach the landowner’s Article 6 right to a fair trial, that the express reference to the public interest in section 74(1)(n) ensures there is no A1P1 breach and that the legislation provides for an adequate level of scrutiny of the factual issues that an application under section 73 may raise (see paragraph 53).

I am not entirely surprised by this. Without meaning to be too aloof, writing in 2006 I surmised that a challenge would be unsuccesful, and with professional credibility in mind I am rather relieved the court found in the manner it did. Here is what I wrote in my 2006 Juridical Review article “Parts 2 and 3 of the Land Reform (Scotland) Act 2003: A Definitive Answer to the Scottish Land Question?”:

Accordingly the crofting community right to buy, as part of a scheme for “[e]liminating what are judged to be social injustices”,[1] will not be in breach of Article 1, nor will the lesser Part 2 right of first refusal…While this may be so, a targeted attack on a specific provision could prove more successful than a broadside against the whole scheme of the Act.[2]

(With apologies, I am not sure if this resource is on open access anywhere but if you know that it is please let me know.)

There is more to write about the detailed opinions given in the Inner House, so this post is offered as something of an introduction. A further offering from me is almost guaranteed, so if this has whetted your appetite do check back to see what else I think in due course. If this blog has been quite enough land reform for you, I will leave you with the words of Lord President Gill (at para 68):

In my opinion, the relevant legislative provisions and the principles of administrative law, considered as a whole, offer a level of protection equal to or surpassing that which, on any view, is required by the Convention.

The Pairc deer drive continues to this day, but this robust judgment seems to ease the community to its desired goal.

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[1] James v UK (1986) 8 E.H.R.R. 116 at para 47.

[2] On this matter, Steven observes “[i]t is…unlikely that a court would strike down a substantial amount of the 2003 Act, e.g. the whole of the crofting community right to buy. A challenge which stands more chance of succeeding is one against particular detail”. Andrew J M Steven, “Property Law and Human Rights” 2005 J.R. 293 at p. 309.