Improving transparency in land ownership in Scotland: a consultation on controlling interests in land

A mini-blog, on transparency of landownership* in Scotland.

This is a matter I have commented on before (see, for example, here).

There is recent Scottish legislation on this topic. Part 3 of the Land Reform (Scotland) Act 2016 gives a skeletal scheme designed to furnish information about who controls the owner or in some cases a tenant of land in Scotland. Regulations are needed to flesh out that scheme. The Scottish Government is now consulting on the associated regulations.

I put in my response (PDF) today. I was stirred into action by fellow legal blogger Neil King: I noticed he had blogged about his response to the consultation exercise and I commend his post to you. (I leaned on his response a couple of times in my own.)

I have written quite a lot about this topic now and – perhaps as a result of being scunnered, more than anything else – I almost let this consultation pass my by. In the end I decided I had better put something in, but my scunneredness means I will not say too much more in this post and leave my (selective) response to speak for itself.

The consultation closes on Monday 5 December.

*For no reason, I note the Scottish Government opted for “land ownership” rather than “landownership”. I have tracked that wording in the title to this post.

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What is happening at Glenree? Land reform and agricultural holdings in microcosm, one year on

Another year, another Martinmas.

As explained in a post roughly a year ago, Martinmas is a traditional date of the Scottish calendar that has some significance in property and rural circles. My post last year was my attempt to explain what was going on when Martinmas 2015 arrived at a farm on the Scottish mainland, namely Colstoun Mains, bringing a complex legal relationship to an end. Once again, Martinmas signals the end of a legal relationship, in this case at Glenree, a farm on the Isle of Arran. There are others in a similar situation, but this farm has become a focal point (see this note in The National and this explanation on Lesley Riddoch’s website).

As lawyers might say when drafting things other than in plain English, my blog post applies in 2016, mutatis mutandis. That is to say, it applies with the necessary changes. Or in other words, it remains relevant (I hope). Those wondering what is happening now should be able to find some insight from that year old post.

To explain very quickly (and as with last year, I have not looked at the documentation) I glean the farmers and landowner here entered into a fixed-term agreement to farm the land via a Scottish limited partnership. This limited partnership model was the industry response to a lack of suitable fixed-term letting vehicle of rural land in Scotland.

The farmers affected this year once again fall into the “no but yes but no” assessment of whether they are tenant farmers.

Why “no but yes but no”?

“No” because at the outset the tenant would have been the limited partnership.

“Yes” because by [defective] law enacted in 2003 the farmer became the tenant outright.

“No” because that law was later struck down and nothing has made the occupants at Glenree tenants in the technical sense of the term since.

This is complicated. The law has not become any easier since Part 10 of the Land Reform (Scotland) Act 2016 hit the statute books. To say the farming industry as a whole is at a crossroads as it awaits full implementation of that legislation (with the added curveball of Brexit to contend with) would be an understatement. To put it lightly.

Situations like Glenree are always difficult to draw wider lessons from. In addition to indulging in Latin, lawyers occasionally note that hard cases make bad law. The micro is undoubtedly challenging here, but what about the macro? Sure, a farming business is coming to a definite end and those involved are facing an uncertain future, but it would also be fair to say landlords are not exactly lining up to let land at the moment, so what steps can be taken that do not tenderise an already tender situation?

With that, I bow out, and indeed cop out. I am not going to offer any solutions. The main point of this blog post is to resurrect my 2015 post and in passing highlight some of the current issues. The Scottish Government has recently announced plans for further new starter opportunities, but there is only so much that can be done with public land. Meanwhile, there are plans to enshrine a right to food into Scots law. If that right to food is going to be sustainable, rural Scotland has to be organised in a way that allows that to happen.

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Access to land and the end of the #indycamp at Holyrood

Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.

Deuteronomy 4.2

The #indycamp is no more. Eleven months of independence-themed camping in Edinburgh is at an end. The Inner House of the Court of Session (the highest civil court in Scotland*) refused the reclaiming motion the indycampers brought against the earlier judgment of Lord Turnbull, meaning their appeal was unsuccessful. Eviction followed (BBC report and video here). Ian Smart, a solicitor and former President of the Law Society of Scotland, has blogged to query why the eviction did not happen sooner. Be that as it may, the campers (and the moveable property they brought with them) have been removed. Steps are apparently being taken to ensure a similar camp does not happen again, by way of suitable landscaping of the site, such that camping or caravaning is no longer viable in the shadow of the Scottish Parliament.

What of the reasoning of the court? As with Lord Turnbull’s offering, I recommend reading it yourself for a full understanding of what Lady Dorrian, the Lord Justice Clerk (who gave the Opinion of the court), faced. One example opens this blog post: Deuteronomy was put forward to explain that “The Court of Session Act 1988 is fraudulent and invalid; there is no such thing as a lawful legal entity“. That is a bold claim to make in a developed legal system that has moved on from previous theocratic tendencies. One indycamper “submitted that the court had no authority since Christ in his second coming had granted the campers authority to use the subjects.” (The same indycamper later bemoaned the fact “that an affidavit from Christ dated 1 August 2016” was not within the court papers.) It would be fair to say these and similar arguments did not fly.

Looking at the judgment from a property law perspective, specifically the ability of a landowner to regain possession, at paragraph 9 we are reminded that Lord Turnbull accepted submissions that the campers “did not have the absolute freedom to choose the manner of the expression of their rights under articles 10 and 11 [of the European Convention on Human Rights] to the detriment of others; and that it may stretch their articles 10 and 11 rights too far if they seek to occupy permanently or indefinitely land belonging to third parties even if occupying small areas, posing no threat to public order and even if not causing damage to property.” Essentially, this view was not strayed from. Where the appeal is of specific interest to land lawyers is in the additional analysis made of the access rights conferred by Part 1 of the Land Reform (Scotland) Act 2003. I pray your indulgence as I look into this issue in a bit more detail.

Access to land and access rights

The relevant analysis begins at paragraph 20:

Mr Keatings [for the indycampers]… made a submission in respect of the Land Reform (Scotland) Act 2003, which was not foreshadowed in his grounds of appeal, and was not made to the Lord Ordinary… Contrary to the submissions made before the Lord Ordinary, Mr Keatings submitted that the reclaimers had a statutory right of access to the subjects under section 1(3)(a) of the 2003 Act, since their activities included recreational ones notwithstanding that the essential nature of the protest was political. Moreover, the activities of the camp served an educational purpose under section 1(3)(b).  They did not come within the restrictions of section 6, and whilst it was correct that vehicles had been driven onto the land on contravention of section 9, the majority should not be punished for the actions of a minority.  In fact, the terms of section 6 prohibited invasion of the space around a caravan, and so protected the reclaimers’ occupation of the subjects. (Emphasis added.)

The legislation does indeed exclude “a caravan, tent or other place affording a person privacy or shelter” and land in the immediate vicinity of such places from the scope of access rights. It seems a stretch to imagine that such a restriction can stop a landowner taking enforcement action against someone in a place affording privacy or shelter on any other basis. (Plus, it is not as if a landowner needs to rely on rights of access under the 2003 Act to take access to her own land.)

The counter-argument to this is set out at paragraph 26.

On the issue of the Land Reform (Scotland) Act 2003, the Act was quite specific in concentrating on certain permitted purposes which gave rise to the right of access, but which also limited the duration of the right. The purposes specified are recreation, relevant educational activity and commercial activities. The primary purpose of the reclaimers… was political: this was not a specified activity and insofar as there are subsidiary objectives such as imparting information by education to others or socialising by holding a barbecue, these were not the primary purpose. The Act only allows someone to remain on the premises while the specified purpose is carried out. They must then leave.

Lady Dorrian wasted no words in rejecting the (optimistic) argument of the indycampers (at paragraph 32).

It was not suggested before the Lord Ordinary that the Land Reform (Scotland) Act 2003 had any bearing on the matter so it is not surprising that this issue was not addressed by the Lord Ordinary. Mr Keatings addressed the matter at length, but we are satisfied that there is nothing in the Act which justifies the reclaimers’ occupation of the property.

Other Stuff

The remainder of the judgment then looks at the proportionality of the remedy sought (that is to say, was the eviction a measured response to the issue faced, with reference to human rights analysis) and a variety of other issues.

As I have blogged before, there is an access to justice angle as well as an access to land angle to this case. In addition to the issue that they could not (or did not) find professional legal representation, some indycampers raised the point that a lower court than the Court of Session should have been the forum (which could, the argument seems to be, have been cheaper, although one suspects the indycampers would have been minded to appeal any Sheriff Court decision that went against them and matters may have ended up in the big court anyway). There were also arguments that the case should have proceeded in front of a jury and that there was a lack of equality of arms.

These access to justice and fair trial points (with reference to Article 6 of the European Convention on Human Rights) did not wash in the Inner House. At paragraph 32, Lady Dorrian is clear in her view that Lord Turnbull took “full cognisance of the fact that they were not legally assisted or legally qualified.” She later notes (at paragraph 45) that there was “no merit” in the whinges about the Court of Session or the lack of jury, then detailed all the steps Lord Turnbull took to assist the indycampers to obtain representation, and as such their Article 6 rights were not breached.

What next?

The camp has gone, but there are two footnotes to all of this.

First, expenses are being sought by the Scottish Parliament, in the sum of £105,889.65 (plus VAT, although the VAT is recoverable). An application to the Court of Session about this sum seems likely, per this letter (PDF also available online).

Second, that letter indicates leave to appeal to the UK Supreme Court has been sought by some of the indycampers.

(To explain the earlier * above in this post, the UK Supreme Court is the top of the judicial hierarchy for Scottish civil law matters, although it sits in London, so you can geographically claim the Court of Session is the highest civil court in Scotland with a certain amount of accuracy.)

Leave has been necessary since the Courts Reform (Scotland) Act 2014 came into force, as explained here. In terms of section 40A of the Court of Session Act 1988, there are potentially two 28 day periods to negotiate for those seeking to appeal: application must be made to the Court of Session within 28 days of the judgment in question, and if leave is refused application can be made to the UK Supreme Court within 28 days of that refusal. Both 28 day periods can be extended at the discretion of the relevant court. (The first 28 day period is almost up.)

A small part of me wants leave to be granted. I am already imagining the former indycampers, latterly of c/o The Scottish Parliament, Holyrood, Edinburgh, posing for photographs next to the William Wallace plaque in Westminster Hall.

Another part of me notes the six-figure sum that has already been totted up. If even this 2014 Yes voter and superfan of access to justice, not to mention an avid reader of case law about the rights of access under the 2003 Act, thinks further time and money spent on this matter might not actually be justified, one can only imagine what those from less sympathetic demographics might think.

Unless of course Christ in his second coming really does want a camp to be at Holyrood until Scotland gets its independence from the rest of the UK. I would feel pretty silly if that was the case.

Credit to Andrew Learmonth for that last observation.

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The Scottish Universities Legal Network on Europe: Position Papers

The United Kingdom’s referendum vote to leave the European Union raises many legal questions for Scotland and the other UK jurisdictions about the implementation and implications of Brexit. One initiative that aims to consider these questions is the Scottish Universities Legal Network on Europe.

As explained on its website, SULNE is “jointly led by the University of Edinburgh School of Law and Europa Institute, the University of Glasgow School of Law and the University of Strathclyde Law School in partnership with all the Scottish Universities” to “provide legal expertise and advice on Scotland and the UK’s future position…for instance by inputting into the work of the Scottish Government’s Standing Council on Europe, publishing expert and focussed position papers and briefings and making these freely available and producing ‘citizen focussed information’.”

In relation to those roles, a number of Position Papers were prepared for the Standing Council on Europe in relation to “Social Protections and Human Rights”. I had input to two of them, on “Consumer Rights” (PDF) and “Environment, energy and sustainability” (PDF), although the majority of the credit for these papers must go to Lorna Richardson (Edinburgh, on Consumer Rights) and the team of Morgera, Cardesa-Salzmann, McHarg, Geelhoed and Ntona (Strathclyde, on Environment).

The papers should speak for themselves. I (or rather, we) hope you find them useful.

sulnelogocurrent-v2.png

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Reflections on “Land Reform: Legal, Historical and Policy Perspectives”

Aberdeenunilaw

This blog post is by Malcolm Combe (Lecturer) and Kieran Buxton (Year 4 LLB (Hons) Candidate, University of Aberdeen). A version first appeared in Issue 177 of the Scottish Planning & Environmental Law journal(October 2016) at page 104.

On 26 August 2016, the University of Aberdeen hosted a conference about one of the hottest potatoes in Scottish politics at the moment: land law reform. The conference, and a related lecture on land reform and the environment the previous evening, brought together stakeholders with a variety of perspectives, experiences and interests, including the Scottish Government and representative groups Scottish Land & Estates, NFU Scotland and Community Land Scotland.

As has been explored on this blog previously, there has been an extensive commitment by the Scottish Government to land reform. The conference allowed speakers and delegates the opportunity to reflect on and critique the developments made under recent legislative…

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Advancing Scotland’s Land Revolution

The title is not mine. It is taken from the panel I participated in at the Radical Independence Campaign’s Conference in Glasgow on 1 October 2016. There is some footage of the event on YouTube.

For some reason, the YouTube recording begins a few minutes into my talk. As a lawyer, this makes me sweat just a little: my disclaimer has been redacted! Allow me to add a blogged disclaimer here, with a few more comments.

Why did I speak at this event?

I was invited to participate at relatively short-notice. By chance, I was in the area for a long weekend. This meant my usual “Can I justify the time and cost of an event in the Central Belt?” question was not such a big factor to contend with.

Should I have spoken at this event?

I mean, RIC are pretty clear in what they want – there is a slight clue in the name. Might I be judged by the company I keep?

I reassured myself that earlier in the year I travelled to the Central Belt to talk about land to the Scottish Land & Estates Spring Conference (as detailed in this post). This gives me the quick response that I am happy to speak about land to lots of people, whether they represent existing landowners and land-based businesses or otherwise.

There is also the small matter of me being on record as having voted Yes in the 2014 indyref on Scottish independence, not to mention I know and campaigned with some of the people who were involved with RIC Aberdeen in 2014. I have previous.

Lastly, I don’t think speaking to an event like this one is much of a problem anyway. Public engagement and education, and all that. I could go on, but I will stop there, lest I fall into the trap of someone who doth protest too much.

What did I speak about?

The title and correspondence before the event steered me towards thinking about the areas of Scotland that land reform has recently rolled into, namely urban Scotland. As I have noted before, land reform is not rural and it is not Highland, a point made in this post about Mary Barbour and Kilbarchan. (For those who watch the video, you will see I am wearing a T-shirt with a map of Scotland, which I used as a prop to explain where I grew up, and a few other Scottish locations.) The community right of first-refusal over assets was expanded from rural Scotland to the whole of Scotland in April, leading to the first reported application for a community interest in (urban) land in Portobello.

The other thing I volunteered to do was set the scene a little for later speakers, to explain what land reform measures are in place at the moment.

How was it?

I enjoyed the other presentations. I particularly enjoyed hearing in detail what is happening with the proposed community acquisition at Wanlockhead, and how the Living Rent Campaign approached what is now the Private Housing (Tenancies) (Scotland) Act 2016.

The panel discussion gave me the experience of finding myself somewhat to the right of the political spectrum in comparison with many people in the room, which contrasted with the audience at the aforementioned Scottish Land & Estates event: at that event I was considering legitimate challenges to landowners’ rights in a modern legal system, whereas at the RIC event I found myself reminding people landowners have rights and sticking up for the rule of law.

You can judge how it went for yourself by watching the video.

Any other reflections?

There are parts of Scottish society that are interested to learn more about land reform. There are also parts of Scottish society that are interested in more land reform. Whether or not this is actually a land revolution is for others to decide, but it is clear that land policy and regulation will be an important subject in the current term of the Scottish Parliament and beyond.

ric-programme

My session was Workshop Round 2, panel 5. (Neil Gray was replaced by Jen Stout on the day of the event.)

 

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The Moral and Legal Drivers for Future Land Reform in Scotland – Guest Post by Robert Sutherland

This is a guest blog post by the advocate Robert Sutherland of Terra Firma Chambers, being a worked up version of his talk The Moral and Legal Drivers for Future Land Reform in Scotland [1] delivered at the recent land reform conference held at the University of Aberdeen.

Introduction

In line with the title for the Conference, the intention behind this talk is to offer some thoughts on legal, historical and policy perspectives which have influenced the land reform agenda in Scotland. The topic of land reform is not unique to Scotland.  Throughout the world (and throughout recorded history) there have been, and continue to be, many examples of changes to legal systems regulating land ownership in order to bring about social and economic reform, in order to remedy problems attributed to existing patterns of landownership and land use.  A non-exhaustive list includes: Ireland, Finland, Sweden, the Soviet Union, Estonia, Albania, Egypt, Zimbabwe, India, Japan, South Korea, China, Brazil, Mexico, and Peru.  Some of these changes have been driven by political philosophy, others by a desire to achieve some practical benefit.  In some cases, the change has been significant and beneficial, and less so in other cases.  A frequent rationale for change has been in order to achieve an outcome that could be described as social justice.

Practical, moral and legal imperatives for reform

Land reform is typically an agricultural issue, and the usual driver for change is usually practical – too many people living in poverty in rural areas, not producing enough food to feed themselves or the country they live in.  Often there is an inequality in land ownership, which may be concentrated in private hands or in the state.  There can also be an inequality over how the land is controlled, so that the relationship between absolute owner and actual user requires to be rebalanced.  Sometimes the issue is about a misuse of a positon of power.  Ireland in the nineteenth century is an example of where a major transfer of landownership was successfully effected in order to reduce the concentration of ownership underlying the poverty and famine rife in the countryside.  The former Soviet Union is an example of where the abolition of private property and the collectivisation of farms was intended to address one set of problems, only to create greater ones which then required further changes to put right.  The fall of the Soviet Union has seen yet more change in the former Soviet Republics, with land being transferred into private ownership.

As well as these practical considerations, there have been moral and philosophical influences which have helped support or encourage the arguments for change.  In western Europe and in other parts of the world where the Catholic Church has significant influence, Saint Thomas Aquinas has been to support an argument that land and property should be treated as common property to be put to beneficial use.  In Summa Theologica (1265-1274) he said:

It is natural for man to possess external things. Man has the power to procure and possess external things, but in doing so these should not be as his own but as common, and that they should be communicated to others in their need.[2]

In his Second Treatise of Government (1690) John Locke wrote[3]:

“Section 26.

God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience …. yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man.

Section 51.

And thus, I think, it is very easy to conceive without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it.  so that there could be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave.  Right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of.  This left no room for controversy about title, nor for encroachment on the right of others; what portion a man carved to himself, was easily seen; and it was useless, as well as dishonest, to carve to himself too much or take more than he needed.”

Locke went on to argue that individuals form societies and communities, and by doing so voluntarily put themselves in a position where they are ruled by the decision of the majority.  However, societies/leaderships/governments cannot arbitrarily take the possessions of any individual without their consent, and if they fail to protect the property rights of individuals they are liable to be overthrown.  According to Locke, government has no other end but the preservation of property (Section 94).

Historic drivers for land reform in Scotland

In a Twitter discussion with Malcolm Combe and others earlier this year about land reform legislation in Scotland I suggested that the Leases Act 1449[4] was the first Scottish land reform Act.  So far, I do not believe that anyone has come up with anything earlier than this.  But the Leases Act 1449 was not a solution to rural poverty:

In Scotland the houses of the country people are small, as it were cottages, and the reason is this: they have no permanent holdings, but hired only, or in lease for four or five years, at the pleasure of the lord of the soil; therefore they do not dare to build good houses, though stone abound; neither do they plant trees or hedges for their orchards, nor do they dung the land: and this is no small loss and damage to the whole realm.  if the landlords would let their land in perpetuity, they might have double and treble of the profit that comes to them – and for this reason: the country folk would then cultivate their land beyond all comparison better, would grow richer, and would build fair dwellings that should be an ornament to the country.”[5]

Because of the poor quality of the land, a traditional agricultural practice that developed was to allow cattle to roam freely to forage for food after the crops had been harvested.  This practice was born of necessity, but was a further disincentive to tenants to improve their lands since the benefit was just as likely to be consumed by their neighbour’s cattle as much as their own.  This problem led to the passing of the Winter Herding Act 1686, which provided that heritors were required to herd their cattle in winter as well as in summer.  The penalty was half a merk for each beast found in a neighbour’s ground.  Apparently the Act was not a success,  In 1762 Adam Smith noted that country people were so wedded to the notion that property in land continues no longer than the crop is on the ground, that:

as soon as the crop is off the ground the cattle are no longer kept up or looked after but are turned out on what they call the long tether; that is they are let to roam about as they incline.  Tho this be contrary to Act of Parliament …. there is no possibility of getting them to observe it, even by the penalty which is appointed to be exacted against it.”[6]

Recent developments

There has been much written elsewhere about the crofting and agricultural holdings legislation which originated in the latter decades of the nineteenth century and continued to evolve in the twentieth century.  My talk however is focussed on the drivers for land reform in Scotland in the twenty first century, and time constraints mean that I am going to skip over these important developments, and jump from the somewhat distant past to more recent developments.

The first piece of land reform legislation in the twenty first century was the Land Reform (Scotland) Act 2003.  This had its origins in a Labour manifesto commitment in the 1997 election on improving access to land.[7]  The 2003 Land Reform Act is in three parts, covering Access Rights (Part 1), the Community Right to Buy Land (Part 2) and the Crofting Community Right to Buy Land (Part 3).

In order to help understand more completely the underlying drivers for more recent developments it is necessary in my view to look at the Scottish Government Policy context.  An important change was brought about by the minority SNP administration’s approach to government from May 2007 onwards.  The Scottish Government set out a single overarching purpose for its government of Scotland – which is “to focus government and public services on creating a more successful country, with opportunities for all of Scotland to flourish, through increasing economic sustainable growth”.  Supporting that single purpose were 5 Strategic Objectives, 7 High Level Targets, 15 National Outcomes and 45 National Indicators.  This structure has given a focus and rationale for government which was new to Scotland, and set a benchmark which has been used to critique the actions of the Scottish Government, local authorities, and other users of public funds.  These policy goals set an agenda for government, acting as the driver for further change.

Of particular note are the objectives and outcomes.  Of the five Strategic Objectives, three in particular are relevant:

  • Wealthier and Fairer

Enable businesses and people to increase their wealth and more people to share fairly in that wealth.

  • Safer and Stronger

Help local communities to flourish, becoming stronger, safer place to live, offering improved opportunities and a better quality of life.

  • Greener

Improve Scotland’s natural and built environment and the sustainable use and enjoyment of it.

The Community Empowerment (Scotland) Act 2015 has given the National Outcomes a legislative base, not just a policy one.  Of the National Outcomes published in March 2016, I would highlight the following as being particularly relevant to the land reform agenda:

  • We realise our full economic potential with more and better employment opportunities for our people.
  • We have tackled the significant inequalities in Scottish society.
  • We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others.
  • We value and enjoy our built and natural environment and protect it and enhance it for future generations.
  • We take pride in a strong, fair and inclusive national identity.

There are now 55 National Indicators set out by the Scottish Government, and there is also a General Economic Strategy:

  • Supportive Business Environment;
  • Learning, Skills and Well-being;
  • Infrastructure Development and Place;
  • Effective Government;
  • Equity;
  • Transition to a Low Carbon Economy

Major underlying themes that run through all of this policy are the effective and efficient use of land and property, economic and social community development, fairness and equity.  Concepts not unfamiliar to Aquinas and Locke.

Although not branded as ‘land reform’ legislation, there have been a number of other Acts of the Scottish Parliament since the Land Reform (Scotland) Act 2003 which have meet the criteria for typical land reform measures.  The Agricultural Holdings (Scotland) Act 2003 introduced the tenant’s right to buy (Part 2) and the right to diversify into other non-agricultural uses of land (Part 3).  The Crofting Reform (Scotland) Act 2010 introduced stronger measures on controlling the use of croft land with a view to ensuring that land was being actively used and was available for use by those who needed it (Part 3: Duties of Crofters and Owner-Occupier Crofters; Part 4: General and Miscellaneous[8]).  The Community Empowerment (Scotland) Act 2015 enshrined National Outcomes in legislation (Part 1) as already noted, and it also contained modifications to the Community Right to Buy legislation in the Land Reform (Scotland) Act 2003 (Part 4) and made provision for Asset Transfer Requests (Part 5).

The most recent piece of legislation has been the Land Reform (Scotland) Act 2016.  The key parts of the Act relevant to land reform issues are:

  • Part 1: Land Rights and Responsibilities Statement
  • Part 2: The Scottish Land Commission : Chapters 1 and 2
  • Part 3: Information About Control of Land
  • Part 4: Engaging Communities in Decisions Relating to Land
  • Part 5: Right to Buy Land to Further Sustainable Development
  • Part 9: Access Rights – makes changes to 2003 Act, mainly in relation to core paths

There was much debate about the potential impact of the 2016 Act as the Bill completed its passage through the Scottish Parliament.  Much of the detail to implement the 2016 Act has still to be developed.

The Future

The Scottish Government has stated that land reform in Scotland is a continuing process – and that land should be used to benefit the many, not the few.  Two non-legislative developments which set the tone for the future are The Land of Scotland and the Common Good, Land Reform Review Group Final Report, May 2014 and Getting The Best From Our Land: A Land Use Strategy For Scotland 2016 – 2021.  I am not going to be so rash as to try to predict the future, but in this year of the Rio Olympics I do wonder whether Brazil provides us with a principle upon which future development might be based which is consistent not only with current Scottish Government policy but which is also to be found in the works of Thomas Aquinas and John Locke.

Brazil is an enormous country, and very large parcels of land, often with unclear boundaries, are owned by multinational corporations.  It has an indigenous population which is poor and struggles to find agricultural land it can work.  Somewhat ironically, in a response to pressure from the United States in the early 1960s the then military dictatorship passed the Land Statute of 1964.  This Act set out the principle that land should be used effectively.  The principle of effective use of land was then enshrined in the 1988 Constitution of the Federal Republic of Brazil.  Article 184 provides that it is “within the power of the Union to expropriate on account of social interest, for purposes of agrarian reform, the rural property which is not performing its social function, against prior and fair compensation in agrarian debt bonds …”. Article 185 excludes (i) small and medium-size rural property, and (ii) productive property from expropriation, and provides that special treatment shall be guaranteed for productive property. Article 186 provides that the social function is met “when the rural property complies simultaneously with, according to the criteria and standards prescribed by law, the following requirements:

I – rational and adequate use;

II – adequate use of available natural resources and preservation of the environment;

III – compliance with the provisions that regulate labour relations;

IV – exploitation that favours the well-being of the owners and labourers.”

The beneficiaries of land redistribution are to be given title deeds which they will not be able to sell or otherwise transact with for 10 years (Article 189).   The acquisition or lease of rural property by a foreign individual or legal entity is also regulated, and in some cases requires to be authorised by the National Congress (Article 190).  Rural land upto 50 hectares may be acquired after five years of uninterrupted possession without objection by persons who do not own any other land (Article 191).

I am not intending to suggest that future Scottish legislation might or should copy Brazil.  The factual context for that legislation is quite different from Scotland.  What might be of interest to policy makers though is the principle that land should be used effectively.  A flavour of that principle can be seen in the Crofting Reform (Scotland) Act 2010, and in the Community Empowerment (Scotland) Act 2015 in relation to the community right to buy abandoned or neglected land.  What will be the next step?


 

[1] This paper is based on notes for a talk delivered at the Aberdeen University Conference “Land reform in Scotland: legal, historical and policy perspectives” on 26 August 2016.

[2] II-II, Question 66, Of Theft and Robbery (1265-1274).

[3] Chapter V, Of Property.

[4] “Item it is ordanit for the sauftie and fauour of the pure pepil that labouris the grunde that thai and al vthiris that has takyn or sal tak landis in tym to cum fra lordis and has termes and yeris thereof that suppose the lordis sel or analy thai landis that the takaris sall remayn with thare takis on to the ische of thare termes quhais handis at euir thai landis cum to for sic lik male as thai tuk thaim of befoir . . .

[5] John Major (John Mair), History of Greater Briton (1521).

[6]  Lectures on Jurisprudence, (i), 53.

[7] A useful overview of the law on access rights over land prior to the 2003 Act, and the scope of access rights set out in the 2003 Act, is provided by Tom Guthrie in Chapter 5 of The Promised Land : Property Law Reform, (ed. Robert Rennie) (2008).

[8] The amended Crofters (Scotland) Act 1993 now has various provisions to ensure that crofting land is used in a way that meets policy goals: s5AA/s19C(2)(a) – residence duty; s5B/s19C(2)(b), (3), (4) – duty not to misuse or neglect the croft; s5C/s19C(2)(c) and (d) – duty to cultivate and maintain; ss26A – 26K – Crofting Commission investigation and enforcement powers; s49A – Grazing Committee duty to report to Crofting Commission; s25(1A) and (1B) – issues relevant to decisions on public interest in making decrofting directions.

The panel featuring Robert Sutherland, second from the right.

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