Land Reform (Scotland) Bill introduced to Holyrood

The much anticipated Land Reform (Scotland) Bill was introduced to the Scottish Parliament on 23 June 2015. Plenty has been written about it already, with analysis by:

Andy Wightman (for a Scots and UK audience);

Andrew Tickell;

Calum MacLeod;

Brian Wilson; and

(for the landowners) Scottish Land and Estates

I published a few tweets to give my instant reaction (starting here).

All of this gives a flavour of the views on the proposed legislation, which it should be noted is: a) separate to the recent Community Empowerment (Scotland) Act; and b) bound to pass though Holyrood, as only the Scottish Conservative and Unionist Party are likely to vote against or abstain when it comes to a vote. Labour, the Liberal Democrats, the Greens and the Scottish National Party will, in all likelihood, line up behind this legislation, so the important thing for Parliament and commentators to do now is ensure what gets passed is a workable and fit-for-purpose scheme.

For those who have been following the debate, there are no particular surprises in the Bill, but is notable that succession is not included. The rules of inheritance – which can have a definite land reform effect (per my previous blog) – are being dealt with separately. (For information, the Scottish Government is proceeding on the basis ‘rights in succession should no longer depend on the type of property‘, so the distinction between land and moveable property when it comes to a general freedom of testation looks doomed.) Also of note is the inclusion of agricultural holdings in a bill that is headed ‘land reform': arguments that the reform of landlord and tenant law as it applies to rural land should not be under an umbrella of land reform have not found favour. In fact, the most detailed provisions in the Bill are on agricultural holdings and the new modern limited duration tenancy. Those detailed provisions deserve detailed consideration: forgive me for not providing that here.

A call for evidence has been issued by the relevant Holyrood Committee, with a deadline of 14 August 2015. In terms of what I intend to mention in my own response, my key point will be about the rules (or lack thereof) about ownership of land by non-EU entities.

Clause 35 of the Bill, headed ‘Right of access to information on persons in control of land’, allows for regulations to be made about transparency and provide for ‘civil penalties and offences’ for non-compliance. Whilst this is an innovation on the law as it stands, nothing the Scottish Parliament does can make (for example) a Delaware registered company more transparent. As such, how effective these provisions are will turn on how stringent and police-able the regulations are. Arguably, a clean ECHR and EU law compliant prohibition on non-EU entitites owning land, as the Land Reform Review Group suggested, should also form part of the package.

I will make a fleshed out version of that point and one or two other points in my submission to the call for evidence (the rules about intervention to further sustainable development in Part 5 of the Bill being a prime candidate for further analysis), but all of that is for another day. When that day comes, I will publish my response on this blog. As ever, feel free to share any of your own thoughts in the comments below.

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Community Empowerment (Scotland) Bill passed by Holyrood

This evening (17 June 2015) the Scottish Parliament passed the Community Empowerment (Scotland) Bill, with 101 votes in favour, 0 against and 15 abstentions. (The Scottish Conservative and Unionist Party abstained.)

This is a piece of legislation I have been following for some time. It will make changes to a number of areas of law, including the right to buy provisions of the Land Reform (Scotland) Act 2003 and the regulation of allotments. Perhaps more eye-catchingly (at least for a certain demographic of Scottish society) it contains provisions for fans to acquire a stake in a football club in certain circumstances, which were championed by the Scottish Green Party (and previously covered in this blog).

In terms of late (Stage 3) amendments, Mike Russell MSP welcomed a new right of acquisition which will allow communities to acquire land when “the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community“. He cited the specific example of Castle Toward, in South Cowal, as a possible beneficiary of this provision. There were also amendments to the fitba provisions from Stage 2, with the removal of the prospect of loan or grant funding for fan acquisitions (tweeted about by James Mackenzie, who was heavily involved in the background for the Greens).

What next? Implementation is yet to come, as is often the style with modern legislation. No doubt further analysis will also follow. There will also be further legislation on land reform, with a separate Holyrood bill in the pipeline. With so much to come, I am reticent to write much more in this blog, so I will leave it at that for now (but comments, as always, are welcome).

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Should a trustee of a charity be required to engage with the local community?

On 2 June 2015, I spoke at a conference organised by The Scotsman about land reform. I rustled together a Storify of proceedings and there was a special report in the print edition of The Scotsman on 4 June 2015.

Those resources provide a complete overview of the topics covered. This blog is about one point raised there, namely the “duty of community engagement” for charities that the Scottish Government raised in the most recent land reform consultation.

The relevant questions asked in that consultation were as follows:

Do you think a trustee of a charity should be required to engage with the local community before taking a decision on the management, use or transfer of land under the charity’s control?

What do you think the advantages or disadvantages would be?

For my part, I answered “Yes” to the first question, before noting the advantage of “Greater community involvement” offset by a disadvantage of “Greater administration burden, but that should be minimal“. Robert Scott-Dempster of Gillespie Macandrew LLP (Solicitors, and sponsor of the event) has made me realise I should have provided a bit more detail in my answers.

In the Scotsman, he wrote the following.

The fact that charities have been singled out from other landowners suggests that it is implicit in the duty to consult that the local community has real power to influence the day to day management of the charity.

Legally, however, a charity has to obey its own constitution, and is not entitled to give favours to other people who are not beneficiaries, even if they happen to be neighbours.

He makes a good point. To elaborate on that, a charity’s own constitution is invariably fortified by statute and perhaps even common law, with legislation requiring certain steps before a charity can be registered with the Office of the Scottish Charity Regulator. Depending on a charity’s structure, other rules might apply: a trust is regulated by the Trusts (Scotland) Acts 1921 and 1961; a company is regulated by the Companies Act 2006.

In terms of why charities have been singled out, Scott-Dempster identifies the ability to influence charity landowners as implicit in the reasoning behind this proposal. That may be so, but it may also be slightly related to a campaign called Land Action Scotland. That related to two large areas of land owned by charities, in Applecross (see note below) and Bute. For whatever reason, it seems people felt so disenfranchised with the land management practises in those situations as to apply en masse for membership of the appropriate charity body.

No comment is made here as to the merit of that campaign. What will be noted is that a charity which exists primarily for landownership purposes (those purposes being likely to accord with those of the charity founder(s), subject to the law) is probably the model that springs to mind when the Scottish Government’s consultation question is considered. As ever, there is more to it than that, and this is a point that was raised in Scott-Dempster’s presentation on the day.

The example he gave was of Cancer Research UK, perhaps considering how best to deal with an asset it owns or leases after it is no longer needed. As someone who has been concerned with cancer a bit more than land reform of late, it would be an understatement to say the example resonated with me. After a five second mind wander, I came back to consider the core point that a charity will have purposes that are important and donors will have given hard-earned funds for those core purposes: sure, might think community empowerment is important, but other donors to Cancer Research UK are more concerned with the development of improved diagnostic or treatment measures, and probably have views that average at somewhere near complete ambivalence about other matters.

There is a legal trope that “hard cases make bad law”. If Land Action Scotland was a campaign about an easy case, Cancer Research UK would be the proverbial hard case. CRUK would, apparently, be caught by a broad brush reforming measure that applies to all charities. Is that appropriate?

Arguably it is appropriate. Looking to UK company law, directors are under a whole raft of duties in terms of the Companies Act 2006 (I blogged on this previously, in relation fitba and a Scottish Cup match). Directors must seek to balance the environment, employee interests and the community, even when these might not be completely in alignment. Of course, a duty to “have regard” is short of a duty to engage, but this example does at least show that there are situations where people have to consider a whole variety of things before making a decision. Sure, CRUK will think about the money, money, money when selling an old research site before moving to a new one, or when seeking an assignee of a charity shop lease, but it does not seem horribly onerous to suggest it should, at least, have some concern as to what might be best for the community in making those decisions. That should not put it in a position that is utterly unmanageable.

The Telegraph recently reported on another potential example, in this case involving the RSPB wishing to dispose of land (in England & Wales, in that case, but the organisation also owns land in Scotland). There are many land reform and inheritance law issues that could be explored here, not least in relation to matters not mentioned by the Telegraph, including your testamentary freedom to: a) leave your land to whoever you want (which you can do in Scotland); and b) direct what must be done with that land after your death (which you can do in Scotland, subject to certain restrictions if your directions are unreasonable or overtaken by supervening circumstances).

For the sake of argument, let us imagine the RSPB was also under a duty to engage with the community before selling off the land (at the best possible price, presumably to maximise its ability to protect birds elsewhere in the UK). Would that be a good thing? To fall back on a handy word that should be every law student’s best friend, arguably it would be a good thing. It would certainly give the “angry” residents more involvement in a process that they feel excluded from.

Now for some more hard questions.

  1. What should the engagement entail?
  2. What happens if the community are actually just NIMBYs, can the process be robust enough to flush that out?
  3. What is the sanction for non-engagement?
  4. What happens to a party who has contracted with a charity either in ignorance of the duty of engagement, or after being assured engagement had taken place when it had not?
  5. What happens when Registers of Scotland is asked to register a transfer to such a party?

I could go on, but I will stop there. All I will note by way of conclusion is that law reform, never mind land law reform, is not always easy. This one aspect gave me a lot to think about and others may be able to add to those thoughts. As ever, please feel free to comment below, failing which feel free to contact an MSP near you before the Land Reform Bill passes Stage 3 in the legislative process at Holyrood.

NOTE: in a welcome display of transparancy, the Applecross Trust makes it known that Gillespie Macandrew provides its legal advice. As such, I would not expect anyone working at that firm to raise anything about that particular solicitor/client relationship, nor should this blog be seen as an attempt by me to trigger any specific comment from them about that.

Posted in Land Reform, Property | Tagged , , , , | 1 Comment

‘Radical’ land reforms in Scotland are nothing of the sort

Land reform stories are totting up in Scotland. I added one today, with a piece in The Conversation, an open access resource that describes itself as “an independent source of news and views, sourced from the academic and research community and delivered direct to the public.”

My most recent land reform story tries to cover as many points as it is possible to in a manner that: a) keeps the reader engaged; and b) appeals to the Conversation’s UK-wide audience. In the editing process, I was told to imagine I was speaking to an intelligent person from Surrey: i.e. they might be interested in my topic, but I should not blind anyone with science, plus a few comparisons to the law of England and Wales would not go amiss. It was a very useful editing process (if a bit cathartic at times) and I am happy with the result.

When I started writing the piece, I listed a few of the tropes that are trotted out from time to time and sought to answer them. Some of that was culled in the editing process, some remained. One point that I made was the recurring argument that use, not ownership  is what is important. Right on cue, up popped a short story in today’s Press and Journal, “Land reform must be about management not physical ownership, says Scottish Tory”.

This triggers a few immediate responses. Option 1: “He would say that, wouldn’t he?” Option 2: “If it is not about ownership, why are you campaigning so hard to keep ownership?” Such responses are attractive (the second being deployed by the activist Alistair McIntosh in a recent episode of Scotland 2015 on BBC2), but they only get you so far. The piece in the Conversation tries to get beyond the simplistic responses and engage with some of the policy issues, but there is a lot more to be said here. Hopefully all of this will prompt a bit more conversation.

Lastly, a o’erlang word on the headline. A few titles were bounced back and forward, including one or two that made reference to the current proposals not actually being the storming of the Bastille or anything like that (hence the Singleton painting), before the editor settled on the title of this blog. One reservation I had with this was in a previous note in the Edinburgh Law Review I had called the Land Reform (Scotland) Act 2003 “radical”. The current proposals go somewhat beyond that legislation, and hence I might be opening myself up to an allegation of hypocrisy. I have just about got myself comfortable with my apparent conversion, as the 2003 Act was definitely radical in property law terms given what it did to a landowner’s autonomy, even if Part 2 of that Act has not had a radical effect on distribution of land in Scotland. I can also make an argument about what exactly “radical” means or in what sense it was being used, but I am conscious I am tying myself in knots, and indeed I could have probably got away with this if I had not mentioned my previous (obscure?) Edinburgh Law Review piece. I have also spent far too long writing this paragraph, and no doubt wasted your time by making you read this. (Sorry.) All of this might give you a further insight into the writing and editing process, which I hope is useful to someone!

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Is it because we don’t sound Scottish?

This question has been asked, apparently in all seriousness, by a landowner* in a recent Spectator article.

A lot could be said about that article. I will restrict myself to one point in this blog, namely taking one straw man set up by the writer of the article, making sure the straw is nice and dry, adding something flammable, then setting fire to it. (In a figurative sense, of course.)

Readers of a certain vintage will hopefully agree with me when I lump this particular ridiculous question in with the comedic interview style of Ali G, when Sacha Baron Cohen’s character confounded (usually older and white) interviewees with the question, “Is it cos I is black?”

It is an effective question to ask, not unlike the devious cross-examiner’s question of, “have you stopped beating your wife?” It draws you into linguistic quicksand if you are not careful. So here is my careful response.

It is difficult to imagine a majority of elected parliamentarians would actually pass legislation to deprive people of land because of how they sound.

More importantly, Article 14 of the European Convention on Human Rights, which Scots legislation must comply with, would prevent such overt discrimination.

So the question set deserves short shrift.

Of more interest here is the landowner* actually owns the land through a company registered overseas, as highlighted by land campaigner Andy Wightman. Now, imagine if the question had been, “Is it because my company is not registered in the EU?” As it happens, the ability of these companies to own land in Scotland is something that the Scottish Government consulted on, after the Final Report of the Land Reform Review Group made a recommendation on the point. Maybe William Astor should consider that issue, instead of whether or not he sounds like Rob Roy.

A few land reform stories have been popping up in the news lately. Anyone would think draft legislation is imminent.

Posted in ECHR, Land Reform | Tagged , | 7 Comments

SULCN Conference 2015: Pushing the Boundaries

On 3 June 2015 the fourth annual Scottish University Law Clinic Network conference takes place at the University of Aberdeen. SULCN is an organisation that brings together the various pro bono activities at the Scottish universities, such as the Aberdeen Law Project or the Strathclyde Law Clinic, providing a forum to share and showcase ideas. This year’s event is all about pushing alternatives to the traditional client-centric approach to clinic work. More information can be found here. It would be great to see you if you can make it along.

UPDATE 7 June 2015: A Storify of the event can be found here.

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The end of a marathon journey

In distance terms, a marathon is 26.2 miles, whereas in common usage the word “marathon” can mean much more than that finite measurement. The word can also be used as a modifier, such that (for example) a task or activity could be prefaced with “marathon”, and as such that task or activity is immediately transformed into something difficult or long-lasting. (“Marathon” could also mean the former name for a Snickers chocolate bar, or indeed a place in Greece that Pheidippides might have started from on his trip to Athens, but I digress.)

My marathon journey has a dual meaning. First, it means the turgid, wheezy, sometimes boring but generally inspirational 40+ km traipse around the streets of London, completed in 4 hours, 35 minutes and 20 seconds. Second, it means the marathon journey from a cancer diagnosis, where by a variety of small steps – often with a lot of help along the way –  I have gradually moved from surviving to living. What follows are a few eclectic and perhaps even related thoughts on both those journeys.

Before that, let me rewind to 2011, when I ran the Edinburgh Marathon in a personal best time of 3 hrs 46 minutes and 40 seconds. I will not be so arrogant as to say that was a skoosh, but I was happy with how I performed. At that same running event, teams of four could participate in a “Marathon Relay”, sharing 26 miles amongst them. The relay is a great way to get less committed runners involved in a bit of exercise – I participated in a team in 2008, running eight miles. All runners share the same course. Only the most churlish of full-marathoners would feel they were somehow better than these part-timers, right? Well, maybe I was guilty of being a churl. I would be lying if I did not acknowledge that I felt a smidgen of smugness as I jogged past those relay runners (marked as they were by a specific label) in my fastest marathon effort. Some of these relay-ers slowed down to walk, even though they were not running the full marathon. I mean, come on! The shortest leg was barely four miles. Disappointing, eh?

Fast forward to 2014. A few friends suggested forming a team for that year’s Edinburgh Marathon Relay. To give you an idea of how this fitted my treatment schedule, I had my last chemo in December 2013, my RPLND/orchidectomy on 29 January 2014, then the relay fell on 25 May 2014. The surgery knocked me for six. (Not actually a cricketing analogy: I was banned from driving and doing anything energetic for six-weeks.) 2013’s chemotherapy and the unavoidably sedentary lifestyle it entailed had taken its toll. Be that as it may, I knew I had to stop feeling sorry for myself. I also knew the psychological benefit of having something in the diary to aim for. As the race neared, I decided to give the relay a go, on the obvious stipulation that I would take the shortest leg. I managed, but I stopped to walk three times. I mean, come on! Just three years before I had managed a comfortably sub-4 marathon without stopping, and now I can’t manage four miles?

And therein is probably the most important lesson I have learnt. Never judge someone unless and until you know the full story. That day in 2014, someone with my 2011 mindset probably ran past me, and saw this ostensibly fine person struggling to manage four miles. Here comes the first cancer contradiction. Physically, cancer has not made me a better person, far from it. In terms of temperament, bar the odd horrible mood-swing (sorry, folks), the opposite is true. I hope I was not quick to judge before. I know I am not now.

So here I am running in London in April 2015. The crowd is exhorting runners to feats of physical exertion, by way of chants, wine gums, percussion and comedic signs: one sign promises “NAKED CHEERLEADERS 1 MILE AHEAD”; another proclaims “I LOVE YOUR STAMINA CALL ME”.  I am wearing a Cancer Research UK vest with my name on it, so the occasional personalised chant comes my way. I get into the high teens then the low twenties of miles, slogging away, thinking… well, lots of things. Any distance runner will tell you your mind wanders a lot, hopefully wandering into happy thoughts to keep you going. One recurring thought I had on this run was that I had sponsorship money behind me, and that really does keep you slogging. Another thing I had behind me was experience, both in terms of past marathons and indeed past events. Sure, my body was struggling after 23 miles of running, but I was not having a massive pulmonary embolism or anything. (Admittedly I needed a bit of help to get through that particular episode, but there we go.) Marathon exertion is, in the main, temporary and opted into. Other conditions are not.

Here comes the second cancer contradiction. Alan Stubbs (ex-footballer, current Hibs manager and TC survivor) wrote about cancer stripping you bare and making you realise just how vulnerable you are. Strangely, and simultaneously, it also makes you invincible. Sure, you have a ticking tumorous time-bomb that needs to be defused that makes a mockery of any claim of invincibility, but you also acquire a certain swagger of “Yeah, I got this” when anything short of cancer happens. Overplayed, that can make you dangerously heartless, but every so often it comes in handy. Soldiering on in a marathon might just be another example of that swagger.

So I swaggered on and made it to the finish on the Mall. My journey there was more convoluted than I imagined it would be when I entered the London Marathon in 2013, but I made it, in a time just about 50 minutes off my previous best marathon. All things considered, I am happy with that. I think that is as near an end to my marathon journey as I will ever find, metaphorically and literally.

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