On Research Leave

In a recent post, I flagged that I was about to begin a period of research leave.

That is not the most important thing that is going on in the world right now. Neither is this post the most important thing you will read today. What this post is for is to set out a bit about my own plans and air some of the things I want to look into, whilst setting up something for me to reflect on in due course. I hope it is not too Malcolm-centric for readers, but hey, it’s my blog and all that.

This is my first such sabbatical from teaching and administrative roles since I began my full-time academic career in 2011. I am looking forward to it. I am also a bit apprehensive, in that I need to prove to myself that I can still do some hardcore research. I also need to repay the faith others have shown in me by producing some solid output.

That faith is manifested in at least two ways.

First, a variety of my colleagues have picked up some of my workload. I have done this for colleagues in previous years, for sabbatical cover and also for staff absence for not-so-programmed reasons. I suppose this is part of the academic circle of life, but I am no less appreciative of it. (In fact, I should acknowledge colleagues have also done this for me when I was on medical leave, and bizarrely that period of “sabbatical” was relatively productive for me in terms of published output, at least when I was not distracted by treatment: maybe I do not need to be worried about my capacity to research and publish after all.)

Second, I am fortunate and very grateful to have received some funding in the form of a  Research Incentive Grant from The Carnegie Trust for the Universities of Scotland.

In a spirit of open access and public engagement, I would be happy to share some of the details of my application if anyone is interested, but I do not want to jump the gun and divulge anything in public before it is appropriate to do so. It might be the case that a link to successful grants or excerpts thereof will be made available on the Carnegie website: if and when that happens I will link to it here.

What I will say is that the scheme allowed applications for up to £7,500 and I did not apply for the full amount.

I applied for funding to look into (yup, you guessed it) land reform. In addition to ongoing general analysis of land reform and community empowerment legislation, I wish to look specifically at abandonment of property, which I think sits nicely at the nexus of private property rights and the public good. The word “abandonment” appears in the Community Empowerment (Scotland) Act 2015, as a potential trigger for community acquisition of land. Suitably formed community bodies will soon be able to force a sale when land is “wholly or mainly abandoned or neglected” (and, for that matter, when land has been environmentally mismanaged). The word “abandoned” is not defined in the legislation. The concept and the right (or wrong) of abandonment is already an aspect of Scots property law though, in that an owner of a thing can (seek to) walk away from that thing. That is not the full story though: recent case law relating to sites where coal has been extracted is to the effect that it is not possible to simply disclaim any involvement with such land.

I think those two treatments of abandonment are worth further study. Abandoment also crops up (pun intended) in other areas of law, such as crofting. There are duties of a crofter (whether as a crofting tenant or as an owner-occupier crofter) relating to the use of land and a proximate residency requirement which have certain commonalities, I think, with a wider public goal of not allowing land to lie fallow. There are other areas I plan to look into, and there may be others I have not considered: do please offer a comment if you have any thoughts.

So how will my grant money be applied? The better part of the grant itself is being applied to fund some research assistance at the University of Aberdeen. Some money is earmarked for materials for our law library. The remainder is being applied for a five-week trip to South Africa, specifically Stellenbosch University.

Why South Africa, and why Stellenbosch? On the former, South Africa has a similar “mixed” legal system to Scotland and has been used as a comparator for aspects of private law before. It also has a contemporary programme of land reform, albeit with a very different social, economic and historical background. I have engaged in some desk-based research about this before. I hope an actual trip will add further insight. As for Stellenbosch, there are some existing links (in terms of staff relationships) between that university and the University of Aberdeen, which is handy. Moreover, there is real expertise in property law and land reform there: this monograph written by a Stellenbosch professor being printed evidence of that. All going well, I will be there for some of April and May. I plan to blog about the trip in due course, so I will leave the analysis of that aspect of my research leave at that for now.

Of course, a sabbatical does not completely remove someone from circulation. I will still be around and some tasks still need to be attended to. Plus, I need to try to juggle the need stay active as a commentator without becoming a complete hermit, but also giving myself enough time to engage with research properly. All of this has been evident in what I have been up to during my research leave to date. My January was essentially filled by tidying up my teaching and admin duties, being involved in our internal postgraduate Client Consultation Competition then the equivalent Scottish Client Consultation Competition (which, incidentally, Aberdeen won this year – yay!), meeting a publishing deadline to deal with editor and peer-reviewer comments on a chapter I submitted to an edited collection on community property rights, and one or two other miscelleneous things like this outreach event. February has involved further bitty tasks, and the completion of a book review (more on that if and when I hear from the publisher). Hopefully I can fully engage with my “new” research soon, once I have finally burnt everything that was in my back-burner, but there are still some other things I remain involved with, such as the Scottish University Law Clinic Network and its conference on 7 June, ongoing involvement with Aberdeen Law Project, and a few land reform type events. In relation to the latter, if you can be in Aberdeen on Friday 26 May, the plan is for me to be hosting a discussion with the Chair of the new Scottish Land Commission as part of the University of Aberdeen’s May Festival.

That is enough for now, I think.

Now, time to roll up my sleeves and do some research and non-bloggy writing…

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Community Empowerment and La Banda Europa

On 28 January 2017, there was a community engagement event involving the musicians and friends of La Banda Europa at the Platform Arts Centre in Easterhouse. This brainchild of Jim Sutherland crescendos with a performance at the Royal Concert Hall in Glasgow tonight, as part of the Celtic Connections festival.

I am a director of the company behind this project, La Banda Limited. The nature of last night’s event was a bit of a free for all, in a good way. Given the eclectic nature of the night and its community outreach feel, I offered to say a few words on some of the community empowerment things that are going down in Scotland at the moment. Here is a rough note of what I said.

I appreciate the subject I am about to say a little bit about – property law – is not always the most entertaining, so I won’t take up too much of your time. I also don’t want to get in the way of tonight’s fantastic music. But I hope the few words I do have to say will be of interest.

My name is Malcolm, I work at the School of Law at the University of Aberdeen, but I have been part of La Banda for a few years now. I was also, three years ago, involved in something called the Land Reform Review Group, which looked at land law and policy in Scotland. That group was formed by the Scottish Government because some people think land ownership in Scotland is too concentrated, or that the power balance between landowners and others is not quite right.

My accent is a little quirky by Scottish terms, my mother is from the Western Isles, and believe it or not land raids took place there roughly 100 years ago, after World War I.

People in Scotland often associate land issues with the highlands and rural Scotland, but that would not be the whole story. I went to uni at Strathclyde, in Glasgow, and grew up nearby, in Kilbarchan. Have any Glaswegians here heard of Mary Barbour? She was born in Kilbarchan. She was a radical who, around World War I, mobilised the people, particularly the women, of Glasgow against opportunistic or perhaps even money-grabbing landlords.

Why am I telling you this? Well, a night like tonight and a show like tomorrow is a great example of social or cultural infrastructure coming together; but that is no good if you don’t have physical infrastructure. That is to say, if you don’t have somewhere to put it. We are lucky tonight to be at the wonderful Platform arts centre at The Bridge in Easterhouse, but what happens to those that don’t have access to such facilities?

In Scotland, we now have a number of different ways communities can acquire assets under “land reform” and “community empowerment” legislation. Less than a week ago, rules about “community asset transfer requests” came into force.

Communities now have a few strings to their bow if they don’t have local assets but want to get them.

Communities can now identify private land and buildings to get “first dibs” or “first refusal” in relation to those assets. That is thanks to something called the Land Reform (Scotland) Act 2003.

This is not restricted to rural areas, since last year this has applied in urban areas too. For example, a group in Portobello in Edinburgh has registered interest in an old church.

Communities can also now ask a local council to transfer assets to it and the council must weigh that up fully.

Soon, there will be powers in relation to land classed as neglected or abandoned, to compel a sale.

What about money and support? That is obviously important, and something called the Scottish Land Fund helped finance the acquisition of a boxing gym in Barmulloch, not too far from here. There are also advice agencies to help communities.

Not all of you are Scottish, not all of you might be planning a buyout, but I hope this has given you a little something to think about.

Back to the rest of the evening. Thanks for giving me the chance to say a few words.

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

Brexit and #indyref2: what now?

In the aftermath of the Scottish #indyref, I announced a hiatus from any overtly political blogging.

In the aftermath of the UK vote to leave the European Union, I suspended that hiatus when I posted some reflections on that referendum. That became my third most popular blog post of 2016.

The circumstances that moved me to somewhat political blogging in the first place were the #indyref and the aftermath of the #EURef. A few conversations – and I suppose that more recent post’s popularity – have made me think for a while that I might want to expand some thoughts into another blog post. Two particular events, namely Prime Minister Theresa May’s Brexit speech and the more recent UK Supreme Court judgment, have now jolted me back to blogging.

To massively oversimplify those two events: the former directs the UK towards a clean Brexit; the latter says Parliament must be involved in the Article 50 notification process, whilst noting that the devolved administrations need not play any legal part in that process.

Here are some eclectic thoughts on Brexit, which begin as a comment on the UK as a whole then veer into some observations about Scotland and #indyref2. On the second topic, I can see why people are discussing Scottish independence again, but this post strikes a hesitant tone. In my humble opinion it is not (yet) time for another Scottish independence referendum.

My perspective on the UK and the EU

I have articulated some of my views on the UK and the EU before, either on this blog or on social media.

I am lucky to work in an environment where I regularly get to share ideas with people from Scotland, the rest of the UK, the rest of the EU, and beyond. Since the vote to leave the EU, that environment at the University of Aberdeen has benefited from visits from the likes of Professor Sir David Edward and Dr Holger Hestermeyer to offer their thoughts on Brexit. Both gave informative lectures (with tweet chains here and here). Based on Dr Hestermeyer’s talk in particular, I offer two thoughts.


The first is that the UK and the EU have similar but different negotiation goals. To simplify, but also to go back to the basics of negotiation, the UK is after:

  1. the best post-Brexit deal the UK can make with the EU; and
  2. er, that’s it.

Whereas the EU desires:

  1. the best post-Brexit deal the 27 remaining Member States of the EU can make with the UK; and
  2. the unity of the remaining EU27.

The UK needs to be prepared to deal with a negotiation along those lines. Even if it is properly prepared, the deal the UK wants and what might seem ostensibly in the EU27’s commercial interests could easily rub against the EU27’s unity.

(Of course, the EU might separately disintegrate anyway and won’t this blog post look silly then, but I am working on the assumption it won’t.)

Then there is the fact that, as I understand it, the UK needs to think pretty carefully about securing a deal that includes free trade with the EU. Why? Because World Trade Organization rules operate in a way that dictate any deal short of free trade would then need to be offered on similar terms to all trading partners without a free trade deal. This is something the EU is unlikely to want. “Unlikely” is putting it mildly. This will have huge implications for any negotiation.

Despite what I have just said in the previous paragraph, probably the one thing that I agree with Prime Minister May on is that she needs to somehow position a clean Brexit as something the UK could live with: again, back to the basics of negotiation, think of your best and worst alternatives to a negotiated agreement (per my earlier tweet on the point).

The thing is, I am not entirely sure that this is a good or even an okay option.

What sort of deal can be negotiated?

Brexit is going to be darned complicated. I recently participated in a panel discussion looking at the two biggest issues facing the Scottish agricultural sector, namely land reform and Brexit. Numerous interesting points were made (by others, and I hope by me). Whilst I left the event enlightened, I also left the event with even more questions of my own about how imports and exports will work, not to mention the issues of future support payments for agriculture and access to migrant labour (which is at least transitionally important, given the current reliance of the soft fruit industry on migrant work). People with insights into the financial or fishing industries, to name but two, will no doubt have individual concerns for their sectors.

This is not remoaning. This is trying to make Brexit work and pointing out real obstacles that exist along the way to any Brexit utopia. And I am far from convinced the path taken will be the best for the UK (including Scotland).

My perspective on Scotland

Ah, Scotland. What should Scotland do? Is this the famous “material change” that might allow for another independence referendum? As already noted, I am not quite sure we are there.


Some might argue the UK Supreme Court decision exposes just how weak the devolution settlement and the recent Scotland Act 2016 are. Maybe I have low expectations, but I was not actually surprised by that revelation.

What strikes me as more important are the actual mechanics and implications of Brexit. I still think it is beholden on all of us to try to make this work at a UK level, but I also think the direction of UK Government travel could soon be enough to make the independence option an option again. Some thoughts on Scotland now follow.

Scots and unions

My first thought here is one I owe to several conversations with University of Aberdeen colleagues and others. It is a generalisation, so open to critique, and as such this is perhaps why I have not seen it articulated too much in print. The generalisation is that the Scots, in the main, have a history of “getting” union. (For example, after Darien and all that, it was clear(ish) that union provided a way for wee Scotland to take part in the adventure of Empire.) Perhaps this mindset has contributed to both recent referendums producing Scottish votes in favour of union.

(Before anyone comments, I know there is a danger of pretending Scotland is homogenous block of Remainers: I mentioned that in my previous Brexit blog post.)

Add to that that both referendums were largely accidental. And yes, they really were accidents, even if the hardcore campaigners for either cause might claim otherwise: for the indyref, that “wholly accidental” referendum was caused by the SNP somehow winning an absolute majority in the 2011 Holyrood elections; for the EURef it was because the Tories won an absolute majority in the 2015 General Election and David Cameron’s short termist bid to placate wings of his own party led to a referendum on the UK’s membership of the EU.

Scottish independence: “Why?” or “Why not?”

Time for another generalisation. Harking back to 2014, in my limited experience of arguing for Scottish independence I found people could be crudely organised into two mindsets: those who thought “Why?” and those who thought “Why not?

Those in the “Why not?” camp were more likely to take a punt. I was one of those, although (as noted in my pro-Yes blog post) I was open to being convinced of reasons to the contrary.

(One reason to the contrary that was bandied about regarded Scotland’s place in the EU. Dame Anne Begg (then the MP for Aberdeen South) ran that argument at an event I attended in Aberdeen. I responded with the counter-position from the audience. Things look a bit different now… But that is a cheap shot by me. I will return to that below.)

Those in the “Why” camp took much more convincing: “this referendum has been sprung on me, convince me.” That is exactly how I felt about the EURef and it was an experience I had no option but to learn from.

Thinking a bit more about the “Why?”, those less inclined for independence might be subdivided into “Why in general?” and “Why now?”

Brexit may or may not have moved some “Why in general?” folk, but it is the latter camp that Brexit suddenly presents an answer to (and I suspect it is this camp that will be considered carefully when thinking of the timing of any indyref2).

The referendum results demonstrated that the Scots electorate wanted both unions. It now seems increasingly clear that Scots literally cannot have both unions.

Not only that, the recent UK Supreme Court judgment indicates that the Scots’ opportunity to shape Brexit is limited to 59 MPs in the House of Commons, Scottish peers in the House of Lords, and a Legislative Consent Motion (which the UK Government can consider then reject without being in breach of the UK Constitution or the Scotland Act 2016 specifically).

If you are not bothered by that situation, you are in the “Why in general?” camp and have not been swayed. Fair play.

If you are bothered by that situation, like this former representative of Lawyers Together, you have your answer to “Why now?”

But haud on…

Right, so we are clattering to independence then, aye?

As Alistair Darling might say, haud on.

Bad things were predicted in the event of a Scottish Yes vote in 2014.

Bad things were predicted in the event of an EU Leave vote in 2016.

Because independence was not voted for in 2014, you can’t simply assert those predicted bad things would not have happened. And that would have included iScotland having at least a re-shaped relationship with the EU (which, at that stage, would have included the rest of the UK without a mandate to Leave).

Then there is the separate point that any aftermath to the Brexit vote or indeed Brexit itself will not insulate iScotland from challenges a new state would face, whether in Scotland’s particular situation or a new state in general.

For argumentation purposes, let me take it as a given that bad things have indeed happened since the EU Leave vote. (People can and will dispute this, that’s fine. I am not arguing either way, I am just using it as a rhetorical device.) To what extent can the Scottish electorate be convinced that more bad things won’t happen with Scotland hiving off? If it is a struggle to answer that, any campaign will also be a struggle.

Then there is the politics of it. Andrew Tickell’s blogged anecdote of a Yes voter who actually voted Yes to leave the EU is one I have shared before. The impermeability of the 45% who voted Yes to Scottish independence in September 2014 cannot be assumed.

There are also those who may have voted Yes for non-EU related reasons in 2014 but, now that they think about it, feel it is far more likely that they would take up a job offer in Newcastle than Nijmegen and as such the Anglo-Scottish (and Welsh and NI) Union is to be preferred. This is another possible seepage from the 45.

Finally, those who voted Remain for the UK in the EURef might not have expected that vote to instantly transmogrify into a Remain for iScotland. To assume the 45 can be swelled with those Remainers is a big leap.

Sure, maybe there has been an element of swelling, and I have seen some tweets to that effect in the social media echo chamber. But maybe Twitter is not the best gauge of all of this. In fact, this blog post is all rather downbeat, compared to the likes of Derek Bateman’s rallying cry penned in the aftermath of the UK Supreme Court decision.

Also, see all that stuff about Brexit being complicated? Yeah, independence might be pretty complicated too.

What now?

Um, “so why are you blogging about this?”, I hear you cry? Because it might be useful for supporters of Scottish independence to hear a “haud on” from someone who is not Alistair Darling. If this #StillYes-supporting blogger is saying haud on, that means there is still plenty to think about.

All that said, and with apologies to Tracy Chapman, there will be a moment where the question “If not now, then when?” will resonate. Whilst the last referendum was “wholly accidental”, the level of upheaval caused by some forms of Brexit would be such that another referendum would be entirely justified to this blogger: as the historian Jim Hunter tweeted, it is “Ironic that Scotland, which joined UK in 1707 to boost its trading prospects, is now stuck with a UK bent on shrinking these same prospects”.

And to return to the fact that Brexit and iScotland will be complicated, to avoid ever doing something because it is complicated is the kind of thinking that leads one to never move house. Brexit is coming because voters in the UK so wanted to Leave that the associated paperwork did not concern them. For those in Scotland who were worried about the paperwork of Scottish independence, plenty of paperwork is coming your way anyway. At some point, that could be part of the answer to “Why now?”

And if you still do not want that “now”, the chances are your answer to Chapman’s “when?” is “Not ever.” As noted above, fair play: and if you are in that camp I am pleasantly surprised you have read all the way through this blog post.

For those readers who want Scottish independence, I hope this blog post might just be useful in setting out how a campaign might shake out when we reach the “now”.

Yes, this is all very hypothetical.

And yes, political blogging and nation building are both hard: the latter I have no experience of, but I gather it is harder than blogging.

I suspect I will self-impose another hiatus until we see what sort of soundbite-free Brexit we are getting and/or whether indyref2 is actually happening. Do feel free to comment below though and I will keep the conversation going.

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My 2016 in Review

Another year, yet another reflective blog post.

2016 has been quite a year, eh? From an apparent glut of celebrity deaths, to the UK vote for Brexit, to the US vote for Trump, there is plenty to write about. I will not add many words here on those topics (except Brexit, see below). Rather, I will do my usual and crunch the stats on my blog to give a rundown of my most popular posts, reflect on what I have been up to, and also acknowledge that 2016 has (like 2015) been gloriously uneventful for me in terms of health issues.

Taking that last point first, I am grateful there has been absolutely no cancer blogging from me this year. It has been a year of being upgraded from 3-monthly to 6-monthly check-ups and keeping on keeping on. Sure, 2016 has had a few (non-health) challenges for me along the way, but nothing so cataclysmic as to prevent me going into 2017 with a sense of thrawn optimism about the various projects that I hope to be involved with this coming year.

In terms of what I was up to in 2016, this included my semi-traditional mixture of law/land reform/law clinic type events, which are blogged or Storified as follows:

The ALPS Conference in Belfast (and a related event at the University of Glasgow);

Some ad hoc land reform events, including Scottish Land & Estates’ Spring Conference (details of which can be found at the previous link), a presentation to land agents for a RICS Scotland training day in Perth, the RIC Conference in Glasgow (note that “RIC” there stands for the “Radical Independence Campaign” – this RIC is very different to the already mentioned “RICS”, which stands for “Royal Institute of Chartered Surveyors”), a presentation to an SNP branch meeting in Ellon, and a breakfast briefing on land reform and Brexit with the Press & Journal at Thainstone.

The Scottish University Law Clinic Network 2016 workshop at Glasgow Caledonian University (and see this related blog post about me assuming some kind of coordinator role for that network);

Some Brexit-related legal musing (in relation to consumer rights, the environment and land reform); and

My own land reform party at the University of Aberdeen, on 25 and 26 August (which is Storified here, analysed for the journal SPEL here, and reflected on more personally here)

Publications wise, in addition to the analysis of that conference in SPEL, I had articles in the Environmental Law Review and Juridical Review journals on the topic of (you guessed it) land reform. I also submitted two chapters to edited collections, one of which is on legal models of community ownership in Scotland (and is out for peer review at the moment), the other is on an owner’s right to exclude others from her property. That second chapter is for the festschrift in honour of my late colleague Professor David Carey Miller (see below). I suspect both could need a bit of a refresh and/or rework when I get comments from the various editors/reviewers back, but the main thing is I got both submitted and I hope they will see light of day soon enough. I also had shorter notes in the Journal of the Law Society or Scotland (yes, on land reform) and the Scots Law Times (relating to an interesting sheriff court decision about corporeal moveable property), and submitted a book review and a case note to the Edinburgh Law Review.

[UPDATE 10 January 2017.] I should also mention my note in Geographical Magazine. Also on land reform, with some bonnie photos.


My top five base drones of 2016 (excluding the blog’s churning home page) follow, but to focus on this WordPress blog would not quite give the full story. My most popular piece was actually this tribute to David Carey Miller, which is hosted at another WordPress site that I curate (for the School of Law at the University of Aberdeen). That was written in February and I am delighted that I have now  submitted the paper that I refer to in that post (and indeed in this post) to the editors of his festschrift. Separately, my post at the School of Law blog about access to land and augmented reality gaming was also quite popular.

[UPDATE: 4 January 2017.] A separate mention should also go to this article in the online open-access forum The Conversation, Can you become a Scottish laird for £29.99? Not quite, which also scored higher than anything on this WordPress blog.

Returning to matters basedrones, the most visited posts were as follows:

In 3rd place, Some reflections on the EU Referendum and a note on #indyref2. I suppose there is much more that I could say about Brexit, but I am not sure this is the place to do so. What I will do is flag that there are posts on the School of Law blog covering a variety of Brexit related issues. I will also take this opportunity to air my tweeted thread about losers’ consent, which I think still stands as we try to work out what the heck it is that Brexit means.

In 4th place, Land Reform Bill – Stage 2.

In 5th place, What is happening at Glenree? Land reform and agricultural holdings in microcosm, one year on.

(Actually, 5th place technically went to #HighlandTitlesDay, but to an extent that is wrapped up with top-ranking DMCA blog post. Also, two older posts (relating to the indycamp and souvenir plots) ranked in my top 5 posts for traffic this year, but I have restricted this analysis to 2016 posts only.)

What next?

I have some research leave to look forward to. I am grateful to the research committee at the School of Law at the University of Aberdeen for facilitating this. My main task for 2017 is to justify their faith in me by getting some work done. I might try to mitigate my social media usage and blogging while I am doing that. Tune back in next year to see how I have got on with that.

Thanks for reading. All the best for 2017.

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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.

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

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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