Access to land and access to justice: an update from SULU

Last year, I was involved in the launch of an initiative called the Scottish University Land Unit. As detailed at some length in an earlier blog post, this was and indeed is designed to partner the skills and enthusiasm of law students with the land law needs of Scottish communities in appropriate circumstances, with the Community Ownership Support Service (COSS) of the Development Trusts Association Scotland (DTAS) playing a matchmaker role.

What has happened since then, I hear you cry? You can read an update over at the DTAS website here.

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New book – 4th edition of Residential Tenancies: Private and Social Renting in Scotland by Robson and Combe

If anyone is looking for some light reading about residential leasing in Scotland, there is a new book on the market that could be just the ticket.

The fourth edition of Residential Tenancies: Private and Social Renting in Scotland, by Peter Robson, Professor of Social Welfare Law at the University of Strathclyde, and, eh, me was published by W. Green last month. (I was waiting until I had the physical copy in my hands before blogging about it. Now that I know it really exists, it feels okay for this blog post to exist too.)

It is a bit surreal to be a co-author of this textbook. Without being big-headed, it is a central reference point for anyone dealing with landlord or tenant matters where the rented property is someone’s home. Fortunately, I know I am not being big-headed. This is because I can confidently state I had nothing whatsoever to do with establishing its reputation. To explain, this is the first part of the surreality that emerges for me. I have a severe dose of imposter syndrome. There are many great lawyers and commentators working in this field already, and I was very lucky to have been asked on board to be part of the writing team for this book by such a person. The second part of the surreality is that I used an earlier edition of this textbook when I was an undergraduate student at the University of Strathclyde, and I still can’t quite get over the LOOOOOOK THERE’S ME ON THE COVER thing that I’ve got going on at the moment. Granted, not many people will care quite so much about this book or indeed any Scots law book, so please just take my word for it.

Anyway, away from that personal story, why does the new edition of this book matter? Here is my attempt at explaining matters in less than 500 pages.

Residential lets in Scotland have been heavily regulated by law for some time. Matters have been further reformed by the Private Housing (Tenancies) (Scotland) Act 2016, which introduced a new and, to some, rather revolutionary form of residential tenancy in the private rented sector. (A private residential tenancy – or “PRT” – gives a tenant the right to stay in a rented property in most circumstances – “security of tenure” – from day one of the tenancy, meaning that the landlord cannot recover possession at the end of any given length of occupation where the tenant is behaving and paying rent when it falls due. There is of course more to it than that, but I’m trying to keep this short.) The new textbook is fully updated to reflect this regime, and also takes in the transfer of jurisdiction for leases in the private rented sector from the Sheriff Court to the First-tier Tribunal for Scotland (Housing and Property Chamber). This is an important change in terms of the accessibility of a dispute resolution forum, and could also be important in terms of the dynamic of cases being dealt with; it’s just that we won’t know just how important this will be for a while. Away from these private rented sector reforms, we also report on relevant updates in the social rented sector (which are less profound, but there are a few).

The book is published by W. Green. A bajillion thank yous to the team there for all their efforts and patience.

If this has whetted your appetite, further information is available on the publisher’s website.

Two cases on the continuing place for public rights of way in Scots law

In the new edition of the Juridical Review, there is a “Case and Comment” piece by Douglas Cusine and me. This considers two sheriff court cases from last year which related to claims that public rights of way existed at the sites in question.

Public rights of way are Scots law devices which afford access by suitable means to members of the public along a course between two public termini. They have a long pedigree in Scots law, although in recent years they have often been playing second fiddle to the statutory right of responsible access that allows passage and access for recreational, educational and even some commercial activities across much of Scotland’s land and inland waters. Important as the so-called right to roam is, the fact these cases were so hotly contested nicely demonstrates the continued importance of public rights of way notwithstanding the access rights conferred by Part 1 of the Land Reform (Scotland) Act 2003.

The first case involved a route in Angus, with limited further details available from Sheriff Murray’s ruling (PDF) owing to the fact the whole dispute was anonymised for public consumption. In short, a core path (a creature of the Land Reform (Scotland) Act 2003, which basically guarantees such a path is susceptible to access rights) was realigned by the relevant access authority. Some people who liked having the route to access a property nearby argued that the now obsolete core path was in fact still a public right of way. This argument was unsuccessful: in fact, in all their evidence there was nothing legally sufficient to establish a public right, as they did not lead any acceptable evidence of use by anyone other than themselves, their visitors and employees (who are not “the public”).

The second case involved a more high profile matter, or at least a dispute that is relatively well-known up in the north east, namely the dispute between fishermen and a landowner at Cove (just south of Aberdeen).

In this case, at the same time as making a ruling (PDF) about whether boats could be stored on the pusuer’s land (answer: they could not) Sheriff Miller recognised rights of way from Balmoral Brae down to the coast (three of these were pedestrian, to slightly different end points, and one of these was vehicular).

In terms of what this all means for the site at Cove, the first point to note is it is now beyond doubt that the pursuer must respect properly taken access by members of the public, including any fishermen. The sheriff also noted parking at the terminus of the vehicular access route was ok (albeit it can be noted that the pier is pretty tight, and actually blocking someone else’s right of passage could be problematic if anyone does this). As for ongoing management of the route, it can be seen from the photos that the landowner has started fringing the route somewhat (with rocks, to prevent any more land than the route itself being used); again, this activity is alright subject to the route not being obstructed. As regards the boats and equipment, a point separate to the access issue (which we consider in a bit more detail in the note), apparently the remaining boats on the beach were initially squeezed onto a parcel of land not owned by the pursuer at the westmost section of the beach (which you can see in one of my photos). As such, whilst the pursuer successfully deployed property law in relation to storage of items on his land, the goings-on on neighbouring land are beyond his control. More recently though, a fire broke out at the site where the boats and gear had been gathered. (One can only speculate as to whether the newfound proximity of the boats aided the spread of the fire.) As reported in the P&J, the various defenders then received a bill for the legal expenses of the pursuer. If this is the end of the line for the fishermen involved in the case, it seems fair to surmise that they will not be happy with the net result.

What should we make of these cases from an access to land perspective? Granted, these cases are not hugely innovative in terms of the law, but they both show that public rights of way remain important in the modern era and where they can and cannot come into play. These cases also highlight that public rights of way can only go so far (in a figurative sense), and whether arguments about their existence are a good proxy for any essentially private disputes might be debated.

Extract from the Juridical Review

(I will get an open access version of the article online when I am able to do so.)

Scottish Land Commission Investigation into the Issues Associated with Large scale and Concentrated Landownership in Scotland

On 20 March 2019, the Scottish Land Commission published a Report (PDF) on its website, and used that Report as an opportunity to make a number of recommendations about Scotland’s land.

The Report is entitled “Investigation into the Issues Associated with Large scale and Concentrated Landownership in Scotland”. It was written by three employees of the Scottish Land Commission (Shona Glenn, James MacKessack-Leitch and Katherine Pollard) and two researchers from Scotland’s Rural College (Jayne Glass and Rob Mc Morran).

To the extent online publications can reverberate, this one landed with quite a thunk. For a time on publication day this story was given top online billing at BBC Scotland’s news homepage, and it was covered in The Guardian, The Scotsman, and the Press & Journal, to name but a few. A couple of days later, it got some sceptical coverage in The Telegraph (£). (I appreciate Cochrane enjoys writing with a flourish, but I was particularly entertained by the idea of that dastardly Jayne Glass participating in a kangaroo court. For full transparency, I should declare she is a friend and we have worked together and continue to work together on a few projects.) The land reform activist and MSP Andy Wightman welcomed the Report (writing in The Herald). Meanwhile, Scottish Land & Estates’ response is available here (welcoming some bits, pushing back on others), and one particular large land owner’s response was covered in The Guardian (noting some of the concerns raised, but highlighting the positive steps that were planned anyway and how some of the proposals might get in the way of this benevolent activity).

It was also covered in the Scottish Legal News, and yours truly has a quote there. It feels weird to quote yourself, but, eh, here’s what this gobby Combe character said after quickly skimming the report and its coverage when asked for a comment.

For those who have been following the Scottish land reform debate for a while, the contents of the report might not be a huge surprise, with its highlighting of matters such as the concentration of land owners in some rural areas and possible monopoly-like effects large land owners can have on local communities.

The report does offer a new, accessible entry point to the debate and gathers things together nicely, and the press coverage it has already generated shows that the Scottish Land Commission is doing the right things to fulfil its statutory function and get people thinking about Scotland’s land.

After watching the dust settle for a few days I think that quote just about still does the trick, although I was perhaps a bit curt in not acknowledging the Report really does bring together a whole heap of research in a very useful way. Cochrane might contend this is a watered-down kangaroo court charged with providing the correct evidence, but the evidence the Report refers to seems robust rather than jumped-up to me. (Full disclosure again: I was at least tangentially involved in three bits of work that are referred to in the Report, but there are over twenty other sources included in the References that I am not inherently biased towards.)

The question now, I suppose, is this: where do we go from here?

Bouncing off this Report, the Scottish Land Commission took the opportunity to say the following:

Informed directly by the evidence that has been gathered, the Commission is today making initial recommendations to address the adverse effects identified, and to stimulate a more productive, diverse and dynamic pattern of rural land ownership.

Recommended statutory changes include:

• Public interest test for significant land transfer

• Requirement for a management plan

• Statutory Land Rights and Responsibilities Review

The Commission also made two (non-statutory) recommendations relating to the promotion of more diverse private ownership and local engagement in any land use changes.

To focus on one of these points, the idea of a public interest test for a significant land transfer is not new. The Land Reform Policy Group (remember that?) aired it approximately twenty years ago. Australia – home of actual kangaroos as opposed to kangaroo courts – has rules that allow for approval and/or suitable publicity for certain land transactions (something I considered as part of a research team led by the dastardly Dr Glass). Is now the time for something to happen in Scotland?

Well, just maybe. The Scottish Parliament discussed this on 21 March 2019, and at the conclusion of proceedings agreed to this motion.

That the Parliament agrees that land is one of Scotland’s most important assets; recognises the value of the Scottish Land Rights and Responsibilities Statement in providing a framework for land decisions and land management in Scotland; recognises the close relationship between land ownership and land use; agrees that community ownership of land should be the norm and not simply a response to market failure or disputes with landowners; recognises the importance of the Scottish Land Fund in supporting community land and asset buyouts; recognises that the work of the Scottish Land Commission is making a positive contribution to delivering the Scottish Government’s land reform agenda; agrees the importance of ensuring that land reform continues to be a key policy priority to change the entrenched and inequitable pattern of land ownership in Scotland so that everyone can benefit from land and assets, both rural and urban, across the country, and urges the Scottish Government to support the recommendations of the Scottish Land Commission on how to deliver interventions in the operation of Scotland’s land markets and ownerships that will provide disincentives to the future accrual of large privately owned land holdings and help deliver a more equitable distribution in the ownership of Scotland’s land assets in the public interest.

It can be seen that these recommendations already have a certain momentum at Holyrood. One brief thought just to rain on the Scottish Land Commission and Scottish Parliament’s parade though: a public interest test for land transfers is all well and good, but how will a transfer of shares in a landowning company be dealt with in this regard, what with commercial law generally being reserved to the UK Parliament?

That heckle does seem like quite a naff way to finish a blog post though, so I will briefly conclude by noting this Report and the reaction to it are more than a little interesting and difficult to ignore. The Scottish Land Commission really has thrown a land reform cat amongst the landed pigeons. Now we wait to see how things settle after this initial ruffling of feathers.

Some challenges for public access to land in Scotland: daunering with drones or dugs

The Scottish right of responsible access (aka the right to roam) is something that is now suitably nestled in Scots law. That notwithstanding, as noted on this blog before disputes occasionally flare up, although generally it seems fair to say that the legislation and the accompanying Scottish Outdoor Access Code seem to work well and are well-accepted in most circles.

Note the “generally” in the previous sentence. Two points have cropped up with increasing regularity recently. I say this based on some press coverage and a recent law reform proposal (both discussed below), and also in terms of questions I have been asked by legal practitioners and interested parties at talks on the topic that I have provided in recent months. What is at issue is what constitutes responsible (and accordingly permissible) access. Or perhaps more accurately, this concerns what is responsible regarding two things that access takers can take with them and then, shall we say, deploy on someone else’s land.

This post is about drones and dogs.

Naturally, it is okay – even encouraged at times – to take moveable property with you when you are using your right of responsible access: for example, no-one is expecting you to disrobe when you roam free, and to do that might engage other legal rules, as the Naked Rambler discovered. To return to more conventional matters, taking a frisbee with you, perhaps even throwing that frisbee to a friend, would normally be perfectly responsible recreation, provided you did not disrupt a local football match or something like that. Transporting yourself on pedal bike or a kayak is normally fine. Pitching a tent for a couple of nights will often be fine too.

What about taking an animal with you? All animals are caught by the legislation in similar terms: section 9(d) provides access with a dog or other animal will not be okay if the animal is “not under proper control”.

Responsible equestrian access has generally been viewed as non-problematic in case law on the issue, meaning horse riding is okay. With horses, the issues have more been to do with potential damage to paths or interaction with other access takers (owing to the size of the animal), rather than horses roaming free, but what does the legislation mean for dogs? A dog, like a frisbee, will often be let loose by its owner. Is this okay?

As with much in the legislation, this will very much depend on the circumstances. The Access Code dedicates several paragraphs to access with dogs (see, for example, 3.53 – 3.56). General guidance is online here. All of this is provided because, as the Access Code rightly notes, walking a dog can be “the main opportunity for many people to enjoy the outdoors, to feelsecure in doing so and to add to their health and well-being”. Dogwalking has implications for others though, and so the Access Code goes on to explain how to take access with a dog responsibly in general and, in some specific situations, in detail. The general advice is to: (i) not take your dog into a field where there are young animals; (ii) not take your dog into a field of vegetables or fruit (unless you are on a clear path); (iii) keep your dog on a short lead or (where appropriate) under close control; and (iv) remove any faeces left by your dog in a public open place.

Despite the Access Code’s clear instruction about not taking a dog into a field where there are young animals, and unlike the situation regarding growing crops (in section 6(1)(i)), there is no general legal exclusion of fields with livestock from access rights. Dogs in fields with livestock can nevertheless be problematic. Worrying of livestock (which includes a dog simply being at large in a field of sheep) might give rise to civil damages for any injuries caused to livestock and is a crime under the Dogs (Protection of Livestock) Act 1953.

There are other things that could be written about the regulation of dogs (such as in relation to “dangerous dogs” and dog fouling legislation), but sticking with the issue at hand it is worth noting that a private member’s bill is now being considered on the matter, and this is linked to an online #takealead campaign. If passed, the bill “would increase penalties and provide additional powers to investigate and enforce the offence of livestock worrying”. As a non-dog owner and non-livestock owner, I hold no particular torch in this debate, but I can report the “vibe” I am getting from conversations, both on and offline, is that maybe the law does need to be clarified a bit in Scotland. And, for information, in New Zealand large tracts of (sensitive) ground are not accessible with dogs at all, never mind with any responsible test, and this system seems to be accepted, with reform to it being resisted. It would be quite a change if Scotland were to move to such a system, but it is something to keep in mind for anyone who thinks the rules in Scotland might be becoming too harsh on dog owners.

From dogs that are off the leash, to other objects that will be decidedly unleashed: drones. Can the right to roam apply in a way that allows drones to be used for photography? As noted, this is something I have been asked about a few times, and now some press coverage of the issue has emerged.

A few points to note at the outset. Motorised travel is not normally allowed in terms of access rights (per section 9(f)), but before immediately ruling out drones I suppose the analogy might be made here that a child could play with a remote control car on a beach, so why not a drone? Secondly, please note that none of what I am about to write should be seen as condoning possible wildlife crimes (see this report about animals being disturbed by drones) or invasions of privacy. Finally, none of this is going to touch on the wider regulation and possible licensing of drones, which might well be a better legal means to deal with the matter than shoehorning drones in the access regime, but that is for someone else to consider.

Returning to the issue at hand and why this has come to a head, drones have been used to capture photos and footage and, it seems, landowners wish to be able to either monetise this or at least ensure droning is done safely. It will be recalled that the legislation allows for recreational, educational and even some commercial purposes. There is an (as yet untested in court) argument that photography could come within these terms. Before rushing off to start taking photos, it should be noted that it is true that the Access Code is not wholly enthusiatic about photography being taken without first obtaining permission from the relevant land owner(s) (see 3.63), but in an article in the Scots Law Times (News) Douglas Cusine makes the point that the legislation is not as narrow on the point as the Access Code suggests (‘Access for photography’ 2017 SLT (News) 21).

To try to bring this all together, what can be said with a degree of certainty is that drones do present novel problems, not least in terms of how remote they can be from an operator. It seems fair to say the Access Code could be refreshed to try to explain how drone use squares with responsible access, and that is even before you get into the separate aviation-type queries that can arise with drones.

All of this makes for a rather unsatisfactory conclusion. I suspect I will keep getting asked about the issue, and at least now I will be able to point to this blog post. Feel free to comment below if you have any insights or experiences of your own.

ScotWays Guide

On a related note, I was happy to receive the ScotWays Spring 2019 Newsletter this week, with this wee snipper from the AGM where the Guide was launched. And yes, I was asked about drones at that AGM. Other than hedging my bets about drones, I hope the book does serve as a useful resource to most access issues.

Photo credit – Richard Barron

Going Between the United Kingdom and the European Union

The past is a different country: they do things differently there.

So begins L. P. Hartley’s The Go-Between. With due deference to that author, so begins this blog post, looking back on the different country of 2014.

In the latter stages of the Scottish independence campaign, I became a bit more involved with the Yes movement than I had been up until then. Previous involvement had been restricted to the more than occasional share of a story on social media (sorry pals – I sometimes cringe when Facebook Memories reminds me of those insightful posts from more innocent times…) and, even if I had wanted to get actively involved, medical matters intervened a bit in 2013. As and when I finally nailed my colours to the mast with a blog post in June 2014 (albeit I think most friends knew which way I was leaning) many other people – on both sides of the campaign – had been doing far more legwork than this latecomer.

My decision to so nail my colours left me with a bit of catching up to do. The Yes Campaign and the Radical Independence Campaign were involved in door-knocking in Aberdeen right up until the end of the campaign. Through the power of social media and a couple of pals, I volunteered. One such door-knocking exercise involved going back to those who had told earlier door-knockers that they were swithering about their vote. A late but friendly chat from someone might cause them to swither in a particular direction, or so the thinking went, so off we went for another door-knock.

In this canvass, I duly chapped various doors alongside the fellow Yesser I was paired with. At one door, a young Polish lady answered, and twenty or so seconds later her partner joined her at the door.

We had a decent blether. Curious as this may sound, I struggle to imagine how I could have met more Polish Scots than these: they even made the “twinty smackeroonies” joke when the wide-ranging chat turned to currency.

The kicker and I imagine the dealbreaker that arose was the question about Scotland’s place in the EU. The lad asked whether I could guarantee him EU status if Scotland voted yes. I think it was fair to say he wasn’t ready for my reaction. Maybe one reason he wasn’t ready for my reaction was the fact I began my answer with a clear “No” – sorry, lawyer here, not so great at this politicking thing maybe. Having disarmed him and indeed myself with that initial negative, I then trotted through the various arguments that I had to hand as to why I thought a strong case would be made that there would not be an instant extirpation of iScotland from the EU. [This is a fight from the last war – or another country, as Hartley might put it – so forgive me for not revisiting this here, but I won’t resist the opportunity to note Better Together still has that tweet up about voting yes being the process for removing EU citizenship; it’s almost as iconic as David Cameron’s “chaos with Ed Miliband“.] The couple listened with either interest or politeness to my o’erlang explanation. At which point, the lady I was door-knocking with cut through it all by saying something like “Of course, the real risk of Scotland leaving the EU comes from Nigel Farage and his pals taking Scotland out when England votes for it.” Well, quite. We finished the conversation with no indication either way as to how they would vote.

I sometimes wonder what that couple would think now. No, I’ve not seen them since, and I am not sure they or their neighbours would appreciate me trying to remember which secure entry button was theirs, assuming of course they have not moved in the interim years. (Are they even still in the UK?) No, I’ve no idea how they voted or if they voted (although I do know they got a vote – add that to the “our referendum was better than yours” pile). What I do know is a dealbreaker has now, apparently, flown away. We had a pretty big referendum in 2016 and, sure enough, a bald analysis of the votes suggests Scotland is leaving because English (and Welsh) votes carried the day.

So what would the couple think now? Would they and others like them have been better voting for Scottish independence? Here we enter the counterfactual: the past is a different country, after all. What I will say is I’m not so naïve as to pretend the iScotland in EU point would have automatically been a seamless process, or that a Scexiting Scotland would have had an easy time of it. Of the many things the Brexit process has taught us so far, the timely reminder that asymmetric bargaining is a variable is welcome. Nor am I so naïve as to think we can argue the very existence of the White Paper “Scotland’s Future” puts us on some sort of a pedestal from which we can look down wi sneering, scornfu view on Brexiteers. I’m not even going to claim that my wee story about canvassing in and of itself justifies Scotland staying in the EU when the rest of the UK leaves, or that the we can analyse a referendum that was about Scotland in the UK staying in the EU as a mandate for Scotland outwith the UK staying in the EU: as I’ve noted before, it’s waaaaaay more complicated than that.

But what I am going to say is this country is such an absolute clusterbùrach at the moment that it really sticks in the craw that Theresa May or whoever happens to be standing up from the Government benches in the House of Commons can just turn round and not answer any question anyone in the SNP puts to them about the current shitstorm because “something something 2014” – I mean, what a ridiculous logical fallacy which really can get in the sea. (Or, from another perspective, the response “HA SNP GOTCHA you really like the EU so something something you want to stay in the Common Fisheries Policy so get it up ye.” (I paraphrase.)) And that is just from a treatment of SNP MPs perspective, let’s not bother with how much Brexit is debasing so many other aspects of public or political life in the UK. Fancy a ferry contract, anyone? No ferries, och, I’m sure it will be fine…

The past is another country. Part of me would quite like to go back. Absent a time machine, the other part of me wants to use the remaining 1000 or so hours until Brexit happens by operation of law (!) to call out all the deflections and the guff that we are having to deal with, and also to try pretty hard to make the case for at least some kind of delay in the process so we can get our shit together.

In terms of making cases, here is a case I am not going to try to make, namely the case for a No Deal Brexit. Now, there will be some out there who will attempt to make a cogent case for a No Deal Brexit. Be that as it may, surely it is time to accept that a No Deal Brexit now with the UK’s current level of preparation would be, eh, a bit of a jolt. I mean, I’ve relied on medical treatment in the past, can we actually, seriously be even contemplating jeopardising the supply of insulin for diabetics or the radioactive materials that are integral in cancer treatment? Really?

And I’ve not even mentioned Ireland.

Now, what about Scotland? Speaking as a serial referendum loser, I think I’ve been a pretty laid back loser when it came to accepting the 2014 result: losers’ consent, and all that. I hereby post notice that if the machinations of our two great parties at Westminster result in a No Deal situation I plan to have a massive and probably ineffectual Scottish strop about it.

Not yet though. I appreciate this does sound a bit like kicking the can down the road; we’ll cross that bridge when we come to it (and boy the bridge is getting closer and it looks pretty shoogly and rickety and I’m really not sure about this…). I know some people want to go all indyref2 mode sooner rather than later, but I really do think, to quote a very important woman for the Scottish independence campaign, now is not the time. (That was a plot twist, eh?) I appreciate that Theresa May’s phrase was deployed more to accord with the line of thinking that “we’re all Brexiteers now”, which I’ve always had some reservations about but it’s getting pretty close to such reservations not mattering, I grant you. But yes, now is still not the time. The other “now is not the time point” is the age-old strategy to not interrupt a (political) enemy when they are making mistakes. The rather difficult issue with deploying this tactic is the mistakes made and trajectories that any (political) enemies adopt could plunge us into a No Deal we are palpably not ready for, so maybe some interrupting would not go amiss. And with that in mind, I think every ounce of energy from any right-thinking MP (not just those in the SNP) has to be put towards avoiding No Deal, perhaps also with a side-order of not being bounced into May’s deal. Gosh, this is tricky.

Back to this blogging lark. Why else have I written this post at this juncture? Don’t get me wrong, I know another half-baked luke-warm take from another man with his own blog is not necessarily what anyone is asking for right now, but I wanted to get that story about the EU couple I spoke to in 2014 out there. It’s been gnawing at me for a few years. I literally started this blog post in 2017, when I typed out the kernel of the canvassing story, lost direction, and saved it for another day. I only came back to it by chance when looking for something on my old laptop. Now seemed like the time to develop my thoughts and get the original story out there to boot.

Anyway, this is a mighty confused minor Scottish Twitter personality signing off. Sorry if you’ve read this far expecting a solution. I don’t have one. But I do have a fond view of a different country.

Dealing in cultural objects; dealing with a gap in Scots law

It is fair to say that the Dealing in Cultural Objects (Offences) Act 2003 is not a well-known statute in most circles. It is also fair to say there are many other headline grabbing things going on in the UK at the moment. Notwithstanding all of that, this is a short post about this Westminster statute, with a particular focus on the lack of application of it or any equivalent rules in Scotland.

I approach this topic carefully as it is not something I interact with regularly day-to-day. I did have some interaction with it recently though.

In the first term of this academic year at the University of Aberdeen I joined the teaching team of a Masters course called Cultural Property Issues (covering for a colleague’s research leave). The two topics I covered were treasure trove and repatriation.

Treasure trove can pretty much be taught as a subset of Scots property law, so that was a relatively straight swap in the teaching team. This blog post is not about that topic (but if you are interested you can find the Code of Practice for Treasure Trove in Scotland by the brilliantly named Queen’s and Lord Treasurer’s Remembrancer here).

Repatriation is something that took me back to my undergraduate days studying private international law and other dabbling with corporeal moveable property matters with my late colleague Professor David Carey Miller. Accordingly, I set about getting myself back up to speed with the overall principles in this area. In so doing I met the aforementioned Dealing in Cultural Objects (Offences) Act 2003.

The 2003 Act is not difficult to understand in its own terms. In brief though, it closed something of a loophole relating to illegally removed or excavated cultural property (that is to say, objects of historical, architectural or archaeological interest that have been removed or excavated in a manner that was illegal in the place where the act took place), where someone then dishonestly (i.e. with the knowledge or belief it is tainted) deals with the item. The statute makes such dealings a criminal offence.

When the (rest of) UK legislation was passed, it was not extended to Scotland. This was because the subject matter was devolved (see the proceedings of the House of Lords here).

The non-extension to Scotland was not and is not a secret. Law-makers in Scotland knew there was a gap. But there has been a failure to introduce equivalent statutory measures. This is not satisfactory.

It should be acknowledged that there have been attempts to introduce the offence to Scots law, notably via sections 23-36 of the Culture (Scotland) Bill 2006 (see here (PDF), and the wider document containing the bill here (PDF)).

That bill was not enacted, as touched on by the Scottish Government in 2008 here. In this brief return to the issue, in the publication Revitalising Justice – Proposals To Modernise And Improve The Criminal Justice System (PDF), it was noted that suitable provisions would be included in the Criminal Justice and Licensing Bill. But when this became an act of the Scottish parliament in 2010, no such suitable provisions were included. That is where the story ends.

All of this means Scots law is deficient in this area. Ropey conduct that is not technically the existing offence of theft will not attract legal consequences when there are strong arguments, in cultural property terms and for uniformity across the UK, that it should.

This deficiency can maybe be explained. Perhaps legislating for that fickle creature called culture in the climate of Holyrood would be ripe for criticism or politicking. That explanation is not a justification though. A short, targeted bit of legislation – not unlike the 2003 (rest of) UK legislation – could be introduced to deal with this.

There are other areas of Scots law that are ripe for reform that touch on cultural property – this Twitter thread from the Law Commissioner Dr Andrew Steven gives one such example.

As noted at the outset, such matters might not be headline grabbers, but they are important all the same. I hope this blog post serves as a marker for future reform when our law-makers can direct attention to it.

Thanks to Dr Adelyn Wilson and Neil Curtis for chatting through some of the issues raised here with me at the time I was preparing some materials for the course mentioned above. Any errors in this blog post are mine.