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.

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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.

My 2018 in review

Another year, another reflective blog post.

I begin with a bit of a confession. I wasn’t sure whether to bother with such a reflective post this year. I have not had a massively productive blogging year. I decided to press on with it though. Even with my relative lack of blogging, I think the practice of reflection can still be a useful one, so here goes.

As with previous reflective base drones, this post is mainly about the posts I uploaded here and elsewhere in 2018, and some of the other things I got up to. I am going to strategically restrict this post to retrospective matters. I toyed with offering a few words on the Brexit project that is worryingly careering to the Article 50 legal deadline in, eh, less than serene fashion, although I really don’t know what else I might say about that that I have not said already, plus (somewhat fatalistically) I am not sure what difference I can make. I suppose that latter point is part of the problem, but there we go. I’ll leave it at that for now.

In terms of the academic stuff I was up to in 2018, after my research leave the previous year I returned to a pretty busy teaching load – I can’t complain too much, given the aforementioned research leave, and even though it was a busy time I have enjoyed a lot of the teaching and also picking up a role with the University of Aberdeen’s Diploma in Professional Legal Practice again. It did make for a second term where I did not do as much writing (in blogged and academic form) as I might have wished to, but so be it.

Over and above my regular day job activities, I was also involved with my semi-traditional mixture of law/land reform/law clinic type events, including an event at the University of Aberdeen’s May Festival on access to land, an event about wildlife crime (particularly raptor persecution) and attempts to combat that, a presentation at the BILETA conference organised by my colleague Professor Abbe Brown, a Law Society of Scotland conference on rural law, and the Scottish University Law Clinic Network’s annual conference at the University of Dundee. With my public engagement hat on, in addition to that May Festival event I also had a cameo on BBC Radio Scotland speaking about “hunting” goats and sheep; yes, I am still not entirely sure how that happened either. Unrelatedly, I also accidentally appeared on BBC Radio Shetland after I was interviewed at stupid o’clock in the morning sounding very sober and singing the praises of the Shetland Folk Festival. I share that broadcast for comic effect.

Publications-wise, two pieces of work for the Scottish Land Commission that I was involved with were published, one on interventions in land markets and another on the effectiveness of community ownership mechanisms in Scotland. Another commissioned bit of research I was involved with, this time for the Scottish Government, related to small landholdings and it is available here. Academic article-wise, over and above ongoing editorial matters at the legal journal the Juridical Review (a reminder contributions to that are welcomed – get in touch if you have any ideas or questions), I managed to get a few things published, most notably a piece with Dr Colin Mackie on using property law and securities (charges) over land as a means of ensuring environmental liabilities are not dodged was published in the Journal of Environmental Law (online version here). I had a short article on abandonment of land (with Malcolm Rudd) in the Edinburgh Law Review and I really do hope to finish a bigger article on the point soon, honest. Other short notes appeared in the Scots Law Times (on access to land and succession (see below)) and the SCOLAG journal (with Dr Richard Whitecross, on the Scottish University Law Clinic Network). I also had a couple of notes for the Journal of the Law Society of Scotland, on pro bono expenses orders and a couple of court cases access to land. Access to land also formed my biggest hit of the year, with the new ScotWays Guide being published in November. Finally, in 2016’s reflective blog post I noted that I had finalised two chapters in edited collections, but that neither was quite out yet, then in in 2017’s reflective blog post I noted they were still not out. They are now. Phew. Here is a blog post with an open access link to one chapter (on an owner’s right to exclude) and here is a link to the Oxford University Press collection edited by Ting Xu and Alison Clarke.

STAT ATTACK

The top three base drones of 2018 (excluding the blog’s churning home page) were as follows.

In 1st place, this post about the Scots law of succession (inheritance) when someone dies without leaving a will. This later became a Scots Law Times (News) article.

In 2nd place, a post on an access dispute in Penicuik, which (owing to the names of the pursuers) allowed me to channel a Therapy? track in the title.

In 3rd place, a post about the Scottish University Land Unit. This initiative, allowing student volunteers to support the Community Ownership Support Service of the Development Trusts Association Scotland, has offered some help to community groups in 2018 but could maybe benefit from a bit of a relaunch in 2019. Watch this space for that.

Reference might also be made to these posts which I published on the School of Law blog, one on crofting and developments on common grazings, and another on the (non-)reform of inheritance law in Scotland as it applies to land.

Some reflections on what I have not written about

Another couple of quick points, as followers of my blog might notice two topics did not feature at all, namely: health; and Gaelic. There was also only brief mention of a recurring theme on this blog, that of souvenir plots. Hopefully I’m done blogging about them.

And hopefully I am done blogging (for the time being anyway, touch wood) about another topic, namely health. Mercifully this was another boring year health-wise. Last year I almost did not bother mentioning that boring fact. This will probably (and, I repeat, hopefully) be my last year nodding to this at all, as the end of January 2019 will mark five years since the end of my treatment. Here’s to this year being boring and a shout out to anyone who is struggling with any challenges or missing anyone that has been lost. Rather than warble on any further, I will link to the late Simon Ricketts’ powerful final Tumblr post. I never met him, but I’ll miss his Twitter presence, and I’ll miss his writing posts like that last one.

Another topic I ghosted this year was Gaelic. Not because there has not been anything to say about this boringly perennial topic, it’s just that now I have probably written about it enough to be able to select one of my past contributions off the shelf to try to stave off the most recent person who has decided to punch down at Gaelic, and if my most recent correspondent is not interested in engaging with what is presented I tend to shrug and move on. Maybe that should be my 2019 ambition: be more sanguine.

A final reflection

I will end with one last reflection, not from my blogging year but about an event 100 years ago, albeit it does link to the Gaelic topic I just mentioned. This post has been typed on the Isle of Lewis, a place I have family connections to. My winter trip to the island was brought on by the happy occasion of a family wedding. By chance, it has also coincided with the 100th anniversary of the loss of HMY Iolaire, a boat sailing from Kyle of Lochalsh to Stornoway that was (over)loaded with people returning from service in the Great War. This tragedy brought together a horrible mix of chance, incompetence and poignancy, and wrought such damage on communities already bruised by that war. Others have written about it – in Gaelic and English – with far more style, detail and even anger than this post will manage, so I’ll conclude this post by noting how lucky I am to be pontificating in a blog, and in the meantime inviting you to read up on the Iolaire tragedy if you have not already. I recently attended a talk by John MacLeod, who wrote When I Heard the Bell, which filled in many gaps about an event I had heard snippets of yet never fully understood. (I am not sure the tragedy can ever be fully understood, but there we go.) To that can be added a new book by Malcolm Macdonald and the late Donald John MacLeod, Call na H-Iolaire: The Darkest Dawn – The Story of the Iolaire Tragedy which I have glanced over and already learned from. For the non-readers, plenty coverage of the event is available online. The programme of events in Lewis relating to that tragedy that I have been lucky enough to attend certainly made for a more sombre tone of Hogmanay than I have been used to, but I am absolutely not complaining with my lot when I think of the terrible events of that New Year’s Day and the lasting effects on the communities affected.

Thanks for reading. All the best for 2019.

Post scriptum (added 3 January 2019)

There have been various contemporary artistic responses to the Iolaire tragedy, including this installation next to No. 1 Pier in Stornoway called Sheòl na Iolaire. It has staves to represent everyone who was on the boat and is to scale.

The next artistic response is currently housed at An Lanntair, a multi-purpose venue in Stornoway. There are portraits by Margaret Ferguson of some who were on the boat, then there is a feature with one pebble for each victim placed around a cart. (The cart was the means of transport for the bodies: Lewis ran out of coffins in the aftermath.) Each stone has details of a victim, including where there are from. Most of the 201 stones list a place in Lewis or Harris, but there are some from further afield such as Penzance and Sunderland. The youngest victim was from Aberdeen.

Landlocked: the continuing separate treatment of moveable and immoveable property by the law of succession in Scotland

In the 19th century, the American property reformer Thomas Skidmore (author of a tract entitled The Right of Man to Property!) advocated an approach whereby property rights would end when a land owner died. That is to say, land rights would not be passed on to heirs by will or by some other means. Instead, this approach would allow for (re)distribution of land by the state to happen shortly after the death of a land owner, with associated by-products of larger holdings being broken up and giving those without access to land a route to ownership.

It is fair to say that approach did not catch on in America. Such an approach is unlikely to catch on in 21st century Scotland either. Some reform relating to the inheritance of land has been flitting in and out of the Scottish spotlight for a little while though. The spotlight seems to have been turned off for the time being, per a recent announcement from the Scottish Government. Nevertheless, a new blog post by Malcolm Rudd and me for the School of Law at the University of Aberdeen has used this announcement as a prompt to examine the issue, and also to flag a recent article in the Juridical Review by Malcolm Rudd. You can find that post here.

The ScotWays Guide to the Law of Access to Land in Scotland

As has been adverted to on this here blog already, I have been busy of late putting the finishing touches to a book on public access to land. That book is now out, under the snappy title The ScotWays Guide to the Law of Access to Land in Scotland. You can read about it on the Birlinn website here.

To explain the back story to this text, land law generally has been a research interest of mine for a while, and within that wider sphere public access to land has been a particular interest. In a way, this is because of a quirk of legislation. The Land Reform (Scotland) Act 2003 was the topic I chose for my undergraduate dissertation. In Part 1 of that legislation you will find the right of responsible access, aka the right to roam. The focus of my dissertation, however, was on something else entirely, namely the community rights to buy located in Parts 2 and 3 of that legislation. Part 1 was something I found equally interesting though, but I only had so many words for the dissertation. I stored up my interest for another day.

After that exercise was complete, I found myself drawn a bit more to Part 1 and access more generally, writing case comments here and there, presenting on the topic to interested parties, and providing other coverage in places like Gloag and Henderson and a collection of annotated statutes. Perhaps as a result of this ongoing study (and also a referral from Professor Kenneth Reid – thanks, Ken) I was approached last year by John Elliot on behalf of ScotWays (the Scottish Rights of Way and Access Society) to pen a new law guide for them.

ScotWays’ previous guide, written by my friend and colleague Professor Roddy Paisley, was published in 2006. That was an important resource but it has gradually become out of date as more case law and guidance has emerged relating to Scotland’s right of responsible access. The new book addresses those developments, and also, I hope, shines a new light on the more traditional rights of public access that exist in Scotland. It endeavours to do this in a style that will be useful to both the lay reader and the access professional, providing two levels of text which first addresses the basic groundwork then provides more detailed analysis. So far it has been positively received; admittedly I have only had feedback from contacts in ScotWays, interested colleagues, and friends, so I await less invested feedback with interest.

There are a few people I need to thank for their help in getting me to this stage. Roddy Paisley of course provided a springboard for some of the book, allowing me to build on a very solid foundation. The book has developed something of a life of its own though and a number of people bounced ideas off me as the book completed its journey, with credit due to the core ScotWays team of John Elliot, Eleisha Fahy, Richard Barron, Alison Riddell and George Menzies. (Richard also provided the bonnie photo on the cover.) Thanks also to Muriel Robertson, the Chair of ScotWays, for her foreword. Special mention must go to the indefatigable Judith Lewis, who kept me right with the indexing process and much more, and Mairi Sutherland from Birlinn. Credit also to Douglas Cusine, who read the draft text and offered useful comments on it. I don’t want to make this all awards speechy, but at this point please imagine me bursting into tears as I thank my mum and dad and then tug at your heartstrings as I thank all the people who helped me still be here to finish this task: as a small token of gratitude for the latter, I donated my fee for the book to Friends of ANCHOR. Lastly, cheers to everyone else who has put up with me of late: if you said I was working too hard, I probably was. Thanks for your patience.

Anyway, what next? I hope to continue working with ScotWays in the future, to provide online updates about important cases that happen from time to time. In the more immediate future, Blackwell’s book shop in Old Aberdeen is hosting a book launch event on Friday 30 November at 17:00. Further information about that event is available here. It would be great if you can make it along.

Research on the effectiveness of community ownership mechanisms in Scotland

A news item was published on the Scottish Land Commission website today, headed “Community ownership should become routine option for communities across Scotland, says new report“. This story introduce a report (PDF) by the Commission to the Scottish Government, entitled Community Ownership and Community Right to Buy. The news story notes explains that this six-page report makes some recommendations to Scottish Ministers for the future of community rights of acquisition; “in particular, that community ownership should become a routine option for communities, so it is planned and proactive rather than reactive.”

In turn, that short report builds on a longer commissioned piece of work, namely the Review of the effectiveness of current community ownership mechanisms and of options for supporting the expansion of community ownership in Scotland produced by a team led by Dr Rob Mc Morran from Scotland’s Rural College. I was lucky to be part of that team: I’m the name tagged on at the end of the full citation, to reflect the fact I was hanging on to various coattails when others did a load of work. It is available here (PDF).

I will let that Report I was involved in speak for itself. This post is just to flag the resource to people. I hope it is useful: it certainly seems the Commission has used it as a springboard for further development.

The report should be cited as: Mc Morran, R., Lawrence, A., Glass, J., Hollingdale, J., McKee, A., Campbell, D. and Combe, M. 2018. Review of the effectiveness of current community ownership mechanisms and of options for supporting the expansion of community ownership in Scotland. Scottish Land Commission, Commissioned Report

Since I’m here, I will remind you that this is the second bit of work for the Commission I have been involved in. That is digested here.

Better access to the law: property briefing for the Journal of the Law Society of Scotland

A quick blog (sign)post.

I have a briefing note in the October 2018 edition of the Journal of the Law Society of Scotland, which is available here. This note couples brief analysis of the Drumlean access case (Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority [2018] CSIH 22, which I commented on here) with the more recent case involving the obstruction of a path at Penicuik (Manson v Midlothian Council [2018] SC EDIN 50, which I blogged about here).