Land Reform Review Group Interim Report

Four months after the ultimate deadline for responses to the Call for Evidence of the Land Reform Review Group (LRRG), the first tangible output of the LRRG has emerged in the form of an Interim Report published on 20 May 2013. Also published is an Analysis of Responses to the Call for Evidence. Both are available online.

The second of these documents is a little bland. No particular criticism is intended, it is difficult to make a distillation of “some people say X, whereas some people say Y…” an exhilarating read. Andy Wightman has collected some of the non-distilled responses over at his website and that remains a very handy resource that can be dipped into alongside the (largely anonymised) Analysis of Responses. No more will be said of that Analysis of Responses here.

The first of these documents, or rather the reaction to it, is anything but bland. Despite its apparently transient title, the Interim Report is the main event as things stand. It gives the first indication of where the LRRG may be headed in terms of its recommendations about land reform in Scotland. For that reason, people have latched onto it and much coverage has already followed. Owing to a rather hectic schedule earlier this week, I have not really had a chance to put finger to keyboard, but this has allowed a degree of reflection before adding my thoughts to those that already exist. Press coverage from the BBC (English and Gaelic), Scotsman and Herald offers some background.

The Scotsman suggests the Interim Report might “open old wounds”, while the Herald’s David Ross begins by noting, “There will be those on both sides of the land reform debate who will have been disappointed by the interim report of the Land Reform Review Group.” This may be the case, but allow me to stress the word interim at this stage. Much as an interim interdict might rankle the parties involved (and indeed have real effects), such an interdict is definitionally interim. So it is with the Interim Report. It may be the main event just now, but more will follow.

A word should be offered on the structure of the report. As someone who regularly looks at legal documents, my approving eye was drawn to the early acknowledgment about the background tensions to reform (primarily around (competing) human rights). The yin that is the apparently retarding force of Article 1 Protocol 1 of the ECHR , which protects an individual from arbitrary deprivation or control of her property, is balanced against the yang of Article 11 of the UN Covenant on Economic, Social and Cultural Rights, which guarantees certain rights such as sanitation, food and housing.

So that would be the identified background tensions, but what is the starting point? Here I am going to get a little theoretical. The starting point is Scots law as at today’s date. I am not going to argue whether the ever lumbering creature that is the law is munificent, benign or malevolent, it simply exists. Law both reflects society (by representing all the things we as members of society hope it should) and shapes society. It shapes society by entrenching positions. It also shapes society by way of vanguard law-making. After such vanguard law-making, you have a new starting point for the law. And so the process repeats, but vanguard law-making must be controlled in a society that recognises the rule of law. Vanguard law-making should also be compelled in a society that recognises fairness and justice for all. Step forward Article 1 Protocol 1 of the ECHR (“A1P1”) of the ECHR and Article 11 of the UN Covenant on Economic, Social and Cultural Rights respectively. Of course, there are other retarding and driving forces. A1P1 might indeed be a driving force in some circumstances, while other important human rights afford people rights to privacy and non-discrimination. Away from human-rights, a desire to harness the benefits of economies of scale has to balanced with the inherently harmful competitive effects of the abuse of a dominant position. These latter points are not mentioned in the Interim Report. I mention them because they need to stay in the foreground of the debate.

So what should the LRRG look at as it sets out on a process of land (law) reform? That is an important question. Answering it in a particular way cannot but sculpt the scope of reforming activities. What the LRRG is not about is tidying up bits and bobs, like that old, foosty feudal system and the law relating to tenemented properties. It is about the policy question of how Scotland’s land should be held and used. The Land Reform (Scotland) Act 2003 (LR(S)A) is clearly one thing to look at, but it is not the only one. You can go back to the aftermath of WWII, when productivity was of such importance to the nation that agricultural tenants were given extra protection from eviction, the effect of which law lingers on to this day. You can go back to 1886, when crofters secured their own little patch of ground, the effect of which law lingers on to this day. You can go back further, to a traditionally strong property right that afforded landowners a certain freedom to improve their land, the effect of which law lingers on to this day. As shall be seen, the sculpting of the scope of the LRRG will indeed have an impact on reform.

What does the report say?

Those already au fait with the LRRG’s work and activities can skip forward in the Interim Report to Section 4, exploring how land reform can contribute to the LRRG’s three pronged remit, namely:

1. Enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;
2. Assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development; and
3. Generate, support, promote and deliver new relationships between land, people, economy and environment in Scotland.

These will be looked at in turn.

Having a stake

At 4.1.1, it is apparent that the LRRG plans to look at ways to encourage more community involvement in geographic cold-spots, away from hot-spots like the “heartland in the North West” (page 16). Encouraging people to engage with existing laws and legal processes is fine, but it is not reform. It is education. As early as the Holmehill litigation, back in 2006, a civil servant made representations to a sheriff that people in Scotland (more specifically Dunblane) should know about the community right to buy contained in the Land Reform (Scotland) Act 2003. At least in part, the sheriff agreed with this by holding that there were insufficient “good reasons” for Holmehill Limited’s application to obtain first refusal over land being late. (By “late”, it is meant that registration was sought after the land was exposed for sale, leaving the community to satisfy some fairly stringent tests in section 39 of the LR(S)A – see the deleted registered community interest number 16, accessible via Registers of Scotland’s website.) The exercise of the LRRG’s formation must have added to publicity as well. In those circumstances, working out why existing law is not being engaged with cannot and should not be the role of the LRRG. I have seen buses in the centre of Edinburgh and television adverts telling me about the Access Code (which builds on the access provisions contained in Part 1 of the LR(S)A). I have never seen an advert for community acquisition. Go figure.

At 4.1.2, there is an indication that the LRRG will move its focus to urban Scotland. This is fine, but there already was a Community Empowerment and Renewal Bill planned before the LRRG came along. Urban and rural land reform are not mutually exclusive, of course, but if there already was an urban forum, making this an increasingly urban forum as well might distract from matters rural. That is pure speculation on my part, but I think it is worth watching.

At 4.1.3, the LRRG focusses on existing initiatives, then devotes an appendix to the submissions of private estates on this point. In his welcome blog on the matter, Calum Macleod (a land reform commentator referred to in the Interim Report), found the separation of such submissions a little curious. I am inclined to share that view. In the same way as advertising the existing law is not necessarily the job of a group set up for the purpose of reform, highlighting existing non-compulsory initiatives (or plaster-fixes, depending on your view) seems to steer away from the purpose of a reform exercise. It is almost like the debate around press (non) regulation or light-touch financial services management – can people who are in a position of power be trusted to play nice? Regardless of how you spin it, private landowners are in a position of power. They own the land. The Interim Report seems to be steering towards an acceptance that landowners playing nice is a way forward. Again, this is an exercise in speculation for now, but this is also worth watching.

Assist community acquisition and management of land

At 4.2, the Interim Report looks at what challenges face communities looking to buy land. The bureaucracy of the LR(S)A is examined. See, e.g., at 4.2.1:

The LRRG believe that this route, of registering and exercising a right to buy property when it is offered for sale, is one which communities will find valuable in a simplified form.

Without meaning to sound defeatist, this is nothing to get particularly excited about. Many people (including me) have written about how idiosyncratic and evadable the right to buy (more accurately described as a right to bid – England & Wales uses the correct terminology in the Localism Act 2011) is. There was no need to set up a group like the LRRG to identify these issues. Making a right of pre-emption slicker and more understandable is all well and good, but it remains a right of pre-emption. Most of the points raised by the LRRG are non-controversial and could be adapted into legislation to smooth out the right to bid fairly quickly without any actual policy shift in the law. The LRRG would be advised not to get bogged down in this issue.

One point of particular interest is that there may be a slight move away from community only process, with a suggestion that community and charity partnerships could be used to acquire land (see 4.2.1). This seems to be a sensible idea, as shoe-horning communities of interest into a corporate embodiment of that community (namely a company limited by guarantee) is artificial.

One of the most interesting points to come out of the Interim Report is the idea of a Land Agency. This was proposed by Community Land Scotland. Apparently the Land Agency would “facilitate the mediated negotiation of the sale of land to communities. In extreme cases where agreement cannot be reached, [Community Land Scotland] propose that a sale should be imposed, if it is in the public interest.” This is what the LRRG notes in Appendix C (at page 48-49).

The LRRG is aware of the sensitivities surrounding this proposal but it has the merit of both changing the culture of developing community ownership in a direction that could be less confrontational for the majority of purchases, while also addressing the difficulties posed by extreme cases where the public interest is not well served by the present arrangements. They believe therefore that it should be given further consideration.

Rights of acquisition in the public interest were explored by the old Land Reform and Policy Group appointed after Tony Blair’s landslide victory in 1997. There was no such right ultimately legislated for in the LR(S)A.

What of crofting rights of acquisition? The Interim Report acknowledges that “Community Land Scotland is keen in its proposal about the Land Agency to develop a mechanism that will cover crofting communities as well as non-crofting communities.” It then goes on to note that the LRRG “will ensure that the interests of the crofting community are respected in any further proposals.” That is it. No word of expanding the Part 3 LR(S)A right of compulsory acquisition, so stand down any scare stories about deprivation.

New relationships with land

4.3 makes some interesting reading. I quote from the first paragraph.

We have been concerned at finding communities that are fearful of expressing their views in public in case of recriminations against them, as well as landowners who are hesitant to approach community bodies for fear of rebuff. We have a long way to go in Scotland before we have established a modern relationship between landowner and community based on recognition of people’s human rights as well as their economic, social and cultural rights.

The first sentence in the extract begins by conjuring images that are reminiscent of the crofter giving evidence at the beginning of the Napier Commission, fearful that his testimony may be held against him by his landlord. After the comma, the first sentence descends into codswallop. What do landowners have to fear from rebuff in a situation like the present where they are not obliged to enter discussions about anything and there are no sanctions should discussions fail? They still own the land. Yes, they have some obligations (to avoid situations like occupiers liability or causing a nuisance to neighbours), but that is hardly onerous. If I offer to sell my bagpipes to someone at a price they cannot afford, where exactly is my fear? If we can come to an arrangement about my instrument, that is fine, but if we do not, ownership stays with me. If the LRRG were seeking balance here, it is contrived and (for so long as the current regime prevails) it should be seen as that.

Staying at 4.3, once again a contrast is drawn between urban and rural Scotland. Apparently this “has come under the spotlight as a result of the access provisions of the LR(S)A.” In strict legal terms, I am not in full agreement with this analysis. Access rights apply in urban areas too, albeit excluded land (such as buildings and their respective curtilages, in terms of section 6 LR(S)A) might be more apparent in a built-environment. I appreciate the LRRG may have focussed on the fact urban dwellers are not familiar with the countryside code (see 4.3.3), so it is best not to overstate the legal point. The Interim Report then goes on to make points about community energy and, with just a hint of radicalism, suggests that possible sanctions where active engagement between landowners and communities is evidently (and repeatedly) not forthcoming. The idea of rights (like ownership) bringing responsibility springs to mind. Such a move would be a marked change for Scots law. Then again, communities are often under obligations (in terms of Part 2 or 3 of the LR(S)A) to act in the public interest and with sustainable development in mind. Should landowners be under similar obligations?

What next?

Under a heading called “Further tasks” the LRRG details what it plans to do (such as clarify the role of a Land Agency) and what it plans not to do. It does not plan to look at the tenanted sector. Why? Apparently this is for the Tenant Farming Forum (with representatives from landowning and tenanted perspectives), and the LRRG “urge” that body “to respond constructively to the tenants’ concerns and proposals.” The LRRG has no clout to follow up that urge. If there is nothing in the Interim Report suggesting there is a need for an urge mechanism, it seems fair to say any final recommendations to politicians will also not include an urge mechanism. Tenant farming is not part of the LRRG going forward. With that in mind, I offer one observation (from 4.4.2).

Landowners also expressed anxieties with regard to their relations with their tenant farmers in connection with the difficulty of intervening when a tenant was not farming the land appropriately and productively, and of ageing farmers choosing to remain on their farms whilst becoming less and less active.

There may have been such representations, but, from a legal perspective, once again, they are codswallop. There are provisions in the Agricultural Holdings (Scotland) Act 1991 for vacant possession to be regained when appropriate levels of good husbandry are not met by the tenant. For non-1991 Act tenancies, Limited Duration Tenancies and Short Limited Duration Tenancies do not open up the landowner to a prolonged period where this will be an issue. With respect to the LRRG, this could and should be classed as a non-point. If they are not taking tenanted matters forward then it will be a non-point anyway, but it seems proper that a firm rebuttal of landowners’ “anxieties” is put on record.

What else is not happening? Access reform. This apparently is for the National Access Forum. What should be made of this? Not very much, I think, other than this. As with the run up to the 2003 Act, many people became fixated on access in submissions to the LRRG. It seems 25% of response were made on access matters, perhaps distracting from any matters relating to the underlying control and distribution of land. Now that there is an established corpus of law in relation to access rights, there should be a split whereby access rights are treated as a standalone area of law (at least in the minds of policy-makers and legislators) to stop this happening again.

Lastly, there are some areas that are outstanding. This includes the position of the Crown (in relation to the foreshore, for example), common good land, taxation and succession. As the LRRG has indicated consideration of that will follow later, I will save any comments for later. It can also be noted that some areas are potentially permanently outstanding for Holyrood, the key one being corporate law (which is relevant to the companies and other entities that own land in Scotland).

The reaction?

I have already alluded to David Ross’s analysis that both sides will be disappointed. If that is indeed the case, that crude analysis would suggest the LRRG has struck the balance about right. What do commentators and interest groups think? First mention should go to the Scottish Tenant Farmers Association, who have expressed “incredulity” at the carve out of tenanted farming. Then there is Andy Wightman. His blog is entitled Land reform withers on the vine of complacency & ignorance. You can guess its sentiment. Calum Macleod describes Wightman’s blog as “coruscating”. That is arguably a little mild. Wightman will be dismissed by some simply for being Wightman, but his blog is worth a look. Macleod’s own blog is also very much worth a look. He describes the potential Land Agency as “pretty much it” as far as the proposals go and concludes as follows:

If the Scottish Government is serious about grasping the bare wire of radical land reform for a more sustainable Scotland, then it will take a lot more than tweaking the community right to buy legislation to deliver on that.  And if the LRRG is to play a meaningful part in that process between now and next April, it needs to add substance to warm words and instil a breadth of vision currently lacking as it embarks on the next phase of its review.

What of other bodies? NFU Scotland seem broadly happy. As do Scottish Land & Estates. On the back of their press release, I tweeted to the effect that they seemed fairly chipper, my thinking being that if a body that represents the status quo is “pleased” many of its recommendations have been reflected in an interim report about by a group set up to specifically consider reform, whither reform? You can find the short conversation here.

Community is the currency

What else can be noted? I could go on, but this blog is already a healthy length, so I offer these final observations. From the exclusion of the tenanted sector and a focus on landowner and community engagement, it is apparent that community ownership is once again the currency of the land reform debate. That was so with the Land Reform (Scotland) Act 2003. The LRRG is now going to consider why community ownership has not had a great uptake in all of Scotland. I wonder if anyone has paused to ponder whether it is because community ownership is not suited to all of Scotland? Lastly, community ownership can only work where there is a sitting community. Once again, nothing is done to address that.