Is it because we don’t sound Scottish?

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

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

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

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

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

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

So the question set deserves short shrift.

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

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

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

SULCN Conference 2015: Pushing the Boundaries

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

Posted in Aberdeen, Access to Justice, Education, Law Clinics | Tagged , , , , , | Leave a comment

The end of a marathon journey

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

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

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

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

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

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

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

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

Posted in Cancer | Tagged , , , , | Leave a comment

A marathon journey

Like most things I say or write, this blog is an extension of my personality. The extent to which it reflects my own rather than my apparently academic personality has varied from time to time. Law has tended to feature in many posts, but I have been known to cut loose and write about other things, like politics or cancer. (The two are not necessarily related, although the latter is a political football I am acutely aware of.)

One thing this blog is not is a running blog, but I do plan to publish one blog post – this one – about my forthcoming London Marathon effort. Why? First, I am confident some of you are interested. Social media followers and other contacts have asked how I have been getting on with my running fairly regularly. Second, it might publicise my charity fundraising drive. More on that below.

What follows now is amended version of an article that appeared in Thursday’s Evening Express. That Aberdeen newspaper previously carried a story about my cancer diagnosis, after they picked up my blog from 28 August 2013.

My London Marathon story actually begins a few months before all that, in April 2013. Whilst getting on with my day-job, I decided to seek a fitness challenge and entered the online ballot for the 2014 Virgin Money London Marathon. I had taken on the Edinburgh Marathon a few years previously and I was keen to set myself another goal. Of course, I knew London hosted a prestigious and popular marathon and first-time ballot entrants were low on the pecking order in terms of being awarded a place, so I duly forgot about it and got on with my life.

Some five months later I learnt that, against all the odds, I had been successful in the London Marathon ballot. A happy tale, it would seem. Alas, my story has a twist.

On 22 August 2013, I was diagnosed with metastatic testicular cancer. That is to say, the cancer had progressed to other parts of my body, including my lungs. Cue lots of treatment. As such, when I learnt I had been successful in the London Marathon ballot, it would be fair to say I was not in great nick. So much for wanting a fitness challenge: careful what you wish for.

I have had many curious conversations with my oncologist since I met him in Aberdeen Royal Infirmary on that fateful day, but the one where I told him I had a place in the April 2014 London Marathon was one of the more memorable. Needless to say, he politely suggested I may not be match-fit for the run. He was right (thankfully he normally is). At that stage, I was not even halfway through my chemotherapy regime. My chemotherapy was followed by surgery, and I can confirm the retroperitoneal lymph node dissection (a pretty big abdominal operation) that I had in January 2014 would have eaten into my training schedule for April 2014 a bit. I deferred my entry for a year.

I wish I could say that time flies when you are having then recovering from treatment, but that would be a lie. By hook or by crook, somehow it is April 2015 and I am contemplating this year’s London Marathon. Gulp.

So what? Don’t get me wrong, at one level “Man gets cancer” is not much of a news story. People get ill all the time, or might even be born ill, and a few self-indulgent column inches in a newspaper or content on the blogosphere is not going to change much.

At another, it is a story everyone can identify with. People realise cancer is something that has affected a colleague, a friend, Taylor Swift’s mum or that nice lady who was in the Oxo adverts. Or perhaps it has affected you directly. If so, sorry for reminding you about what might have been a dark time, but I do think it is fortunate that people are able to talk about cancer in a way that they perhaps did not before. That can only be a good thing, when as many a one in two people in our longer-living population will develop cancer at some point in their lives, according to recent forecasts from Cancer Research UK. Removal of stigma, and the related benefit of early detection, is a key part of successful recovery. If you take nothing else away from this piece, take this: if you have any lingering suspicions about something, do get it checked as soon as you can.

Unfortunately, the treatment I had was all the more onerous because of my late diagnosis, but I am in no doubt that I am still one of the lucky ones. Fortunately, I am able to write this and (somehow) contemplate wheezing around 26 miles of London on 26 April. Needless to say, I am turning this into a fundraising exercise, and with the official charity of the marathon being Cancer Research UK that seemed a pretty logical fit to me. (There are many great local charities dealing with cancer in the north east and I am almost sorry to overlook them on this occasion, but I hope they will forgive me.)

Perhaps the fact that I am giving this a go might just make you ponder a donation to help contribute to Cancer Research UK, with online donation being available here. Heck, you might even enjoy reading my blog and be glad I am still here: far-fetched, I know. My full time job means I have never felt the need to ask for support for this blog. In lieu of support for that, a donation to people who deal with antisocial rather than social science would be appreciated.

As for how I have got on in training, it’s been bloody tough, and far tougher than I imagined it would be when I entered the ballot in the first place. All things considered, it is fair to say I was way above my fighting weight when my training really started at the turn of the year. Gradually building up strength as I padded around the block, then around a bigger block and then finally getting into the teens of miles for a run, whilst more than occasionally cursing a combination of cancer and my own inactivity, was not easy. That being the case, having a goal to get back into shape for has been fantastic, for mind and body.

Now I just need to put it all into practice in London. I will pop up an update after the run to let you know how it went.

Posted in Cancer | Tagged , , , , | 1 Comment

Glen Gairn

I recently visited Glen Gairn.

The River Gairn – the River Dee’s largest tributary – runs east from Ben Avon before snaking south-east to meet the aforementioned Dee to the west of Ballater. According to the map on the Cairngorms National Park websiteGlen Gairn starts roughly at the bridge where the main road from Ballater to Tomintoul crosses the River Gairn, then follows the river downstream.

Main Road BridgeDownstream Gairn

I am taking Glen Gairn (sometimes rendered Glengairn) to also include the land tracking the river to the west of that point (which the National Park website calls the North Eastern Hills). To not do so would be to exclude land like this.

Daldowie Bridge742UpstreamRiver at 2

Thanks to a friendly tweet, I learnt that this bridge over the Gairn at Daldowie was originally meant for a railway, but when it was decided the railway was to terminate at Ballater it was no longer needed and as such was moved to its current location on a public right of way that tracks an old drove road.

Scotways 1 Scotways 2

(The railway that terminated at Ballater is no more, but I digress.)

I enjoyed being in this wonderful spot – with surprisingly wonderful weather – by engaging in a spot of outdoor recreation. First, I stravaiged up a hill (my best guess is my aimless but responsible ramble left me overlooking Coire an tSlugain (Gullet Corrie)). I didn’t meet many people, but I did see a few (game) birds and saw some evidence of muirburn (the controlled burning of heather, to best manage the land for grouse).

MuirburnMuirburn 2

My next recreation was a stoppy-starty jog, taking in a route upstream to the non-railway bridge then cutting south to the back road to Braemar. I met two walkers and two cyclists by the riverside, both couples enjoying the right of way. I did not witness any farming/land management activities, other than some tell-tale wisps of muirburn being carried in the wind and (I think) some geese.

I saw some signage, explaining what the current land use was and what was expected of access takers (which strikes me as sensible land management for shared use).

Estate Signage Estate Signage 2

I also saw plenty of evidence of prior human habitation, from a variety of different eras.

Abandoned 1 Abandoned 2Abandoned 3 - Old Abandoned 4 - outline Sort of abandoned 5 - outlines Abandoned 6 - Outline Sort of Abandoned 7 Outline 8 Old 9

What to make of all this? I am tempted to not add much in the way of words and to let the photographs speak for themselves.

What is clear is that this land – for whatever reason – is not being used in a manner that it once was.

Progress, of course, is something that happens as society develops. I am not meaning to get all wistful about shielings and the way modern agriculture is practised as compared to back in the day, but (as can be gleaned from the following closer view of a property photographed above) at least one of these changes (or rather abandonments) happened fairly recently.

Abandoned 2 Closer

The name of the estate is apparent from two of my photographs. I stress I am not singling this estate out for any reason other than I happened to be a visitor to this lovely spot. I am confident many involved in that estate will know a lot more about land management than I ever will.

What I do know a bit about is property law and land reform, with a smattering of history.

First, history. Or actually, geography. Glen Gairn is not the Strath of Kildonan, Strathnaver or indeed any other area that was punished by the excesses of clearance/improvement. For economic, social or whatever other reasons that I am not going to explore here (but see below), the upper reaches of Glen Gairn lost many human inhabitants.

The use (and/or ownership) of the land has a number of ecological, economical and social effects. The present use – where I was allowed recreation and preparations were being made for a future shooting season – is one that I pass no comment on here.

For provocative blogging purposes, let me make an assumption (and it is a big assumption) that repopulation of the upper reaches of Glen Gairn would be a good thing.

None of the proposals enacted by the Scottish Parliament since devolution would allow for that repopulation.

A community right to buy is redundant when there is no community.

An agricultural tenant’s right to buy (pre-emptive or otherwise) is similarly predicated on a tenant. Obvious, yes, but worth repeating.

Whether or not specific legislative measures should allow for repopulation in places like my accidental case study of Glen Gairn is a policy decision of the purest sort. Decision time is approaching, with a new Land Reform Bill keenly awaited. In terms of what might be contained in any legislation, someone who knows a bit more than my smattering of history responded to one of my tweets to suggest there is a suitable historical precedent that might be updated to the present day. Alternatively, there might be reform in favour of one use or against another use, and that might be a driver for change. (The potential fiscal reform to shooting reliefs is a case in point.)

I could write plenty more about this, but I think now is as good a time as any to stop. Before I go, I will highlight that the abandoned properties of Glen Gairn have provided inspiration to better photographers than me, not to mention a certain Andy Wightman adorns his land reform polemic with a photo of a property (formerly) known as Ardoch. I will give the final words to Wightman, taken from an online update to his book:

Ardoch was a clachan of some 14 houses with a shop and a school. It was also the home of my wife’s great-great-great grandfather’s brother, Father Lachlan McIntosh, the parish priest in Glen Gairn for 64 years until his death in 1845, aged 93. The reason that this Highland community was abandoned is directly attributable to the fact that Aberdeenshire was excluded from the provisions of the 1886 Crofting Act and therefore the residents of Ardoch were never more than a year away from eviction. The reason that the last remaining house lies empty today on a large privately owned estate is eloquent testimony to our continuing failure to challenge landed power.

UPDATE – 10 April 2015. After my post, I received a message from a friend who explained she has family connections to the “Gairnsiders”. Not only that, one of the houses I passed on the B976 (the road that branches off from the A939 Ballater-Tomintoul road and west to Braemar) was still occupied by one of these connections. So there is still farming in the glen and there will be blackface sheep there in the summer. (For my part, I think I counted two active (albeit seasonally inactive) farms in my arbitrary jogging area.)

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

Land Reform in Scotland: Final Report of the Scottish Affairs Committee

Amidst all the other Westminster shenanigans that accompany the run up to a UK general election, the outgoing Scottish Affairs Committee released its last hurrah of a Final Report on Land Reform in Scotland.

The publication of this originally named document means we now have two Final Reports, the earlier being the Final Report of the Land Reform Review Group. The earlier Final Report (fortunately) has an alternative title, The Land of Scotland and the Common Good.

The interaction between the LRRG and the Scottish Affairs Committee is interesting. The SAC, it might be recalled, published an Interim ReportThe Land of Scotland and the Common Good tracked some of the recommendations of that, including in relation to “the transparency of land registration and on the abolition of tax exemptions for sporting land” (that slightly self-satisfied quote being from the SAC Final Report, at para 47).

In turn, the SAC Final Report makes reference to the LRRG Final Report, in relation to “offshore ownership” (that is to say, land that is owned by an entity registered in an offshore jurisdiction for “tax planning reasons” (para 37)) and tax reliefs for agricultural and forestry land (para 31).

That gives a bit of an indication of the key focus of the SAC: tax and rates; and transparency. Whilst you cannot quite hear the harrumphing of (some of) the SAC membership as you read the Final Report, it is clear that (as a whole) its membership was not completely content with the lie of the land. This can be seen as the SAC dishes out disappointment about:

  1. the Valuation Office Agency, who (it is noted at paragraph 7) “having identified problems with the effectiveness and application of the data underpinning the land price indices, chose to cease publication rather than tackle these issues”;
  2. the attitude of HMRC as regards the effect of tax reliefs on agricultural land prices (para 26);
  3. the Government stopping short as regards ensuring public access to information on beneficial ownership of land held by trusts (para 44); and
  4. the Scottish Government ruling out any review of the exemption from non-domestic rates for agricultural land (para 50).

The SAC Final Report singles out Agricultural Property Relief for some attention. Key questions include: why it is in place (the normal arguments in favour being productivity/food security and preventing the break up of family farms); and – assuming the reason for its existence can be established – to review whether those purposes are actually being met.

What next? For devolved matters, it is noteworthy that the SAC felt at liberty to heckle the Scottish Government’s decision not to review the exemption from non-domestic rates for agricultural land (see this PDF of the Scottish Government response to the LRRG Recommendations at number 42). Also noteworthy is the fact that the Scottish Government’s direction of travel seems, in general, to be welcomed (see paragraphs 49 and 53, where the SAC expresses it is “pleased”).

For reserved matters, the final paragraph (54) of the SAC Final Report concludes as follows:

Concentrated land ownership has a negative impact on attempts to create a more socially just Scotland. Accordingly, the long term impact of the Scottish’s Government’s reforms and the new Common Agricultural Payments scheme, along with the effects of Community Land Fund on land ownership and management should be a matter of great importance to the next Scottish Affairs Committee.

Just how important a matter it proves to be, and just what an incoming government makes of this SAC Final Report on Land Reform in Scotland, will depend very much on the general election result. Elsewhere in the report, it is noted that, “Land reform is an intensely political area of public policy” (para 53). It surely is. The new UK Government’s makeup, and its decision to act or not act in the areas identified above, could have a marked impact on Scotland’s land, irrespective of what happens at Holyrood.

Which makes for one more variable in what promises to be a fascinating election.

Posted in Land Reform | Tagged , , | Leave a comment

A right to buy for fans of Scottish football clubs

The Community Empowerment (Scotland) Bill is not a likely candidate as a topic for talk of the terraces. Recent Green Party amendments to that Bill as it passed through Stage 2 of the Committee process at Holyrood might just change that, as there is now cross-party support for the (pre-emptive) right to buy for fans championed by Alison Johnstone MSP.

I wrote about this topic roughly a year ago. My observations in that earlier blog still stand, even now that we have some actual wording to consider. The proposals, found in clauses 62B-62S of the Bill, allow a “supporters’ trust” to register an interest in relation to a Scottish Professional Football Club. There is an analogy to be drawn with Part 2 of the Land Reform (Scotland) Act 2003 and (to a lesser extent) the (English) Localism Act 2011 (see this document relating to Blackburn’s stadium Ewood Park). There is no right to buy outright, but there is a right of first refusal. That is to say, properly constituted fan groups will have first dibs to buy “their” football club, at a fair value.

Perhaps most importantly of all, clause 62S gives supporters “a right to buy a proportion of the shares in that football club at any point when the right to buy that football club has been activated”, provided that stake relates to at least 5% of the shares in the club. Thus fan groups will not be priced out by a need to buy the whole asset. This stands in direct contrast to the Land Reform (Scotland) Act 2003, which often requires a community to put up or shut up for the whole asset exposed for sale (albeit that might not always be the case, if a community had tactically registered an interest for a small part of a large holding). Maybe the land provisions of the 2003 Act could learn something here.

(NB. “Shares” is not defined in clause 62S. This clause of the Bill seems geared towards the (admittedly prevalent) situation of a footballing company rather than any other business structure.)

Reaction to the proposals on the internet and social media has been generally positive, with an occasional smattering of balance. Today, the BBC reported the proposals received a, shall we say, not very complimentary response from the Scottish fitba powers that be.

Are the SFA and SPFL correct to be “astonished”? By way of analogy with another area of law, which pops into my head solely because I am teaching the topic of insurance law to University of Aberdeen students this term, self-regulation is a perfectly valid model in many spheres, but there are times when legislation is introduced for specific reasons. With insurance, the industry enjoyed a carve our from the Unfair Contract Terms Act 1977, but latterly direct regulation of consumer insurance has occurred. With land reform more generally, there are arguments for and against an unregulated marketplace. Whether these legislative proposals are appropriate for Scottish fitba at the moment is very much a question of circumstances. Again, I ask a variation on a question I considered last year: would fans of Rangers, Hearts, Hibs, Gretna, Dundee, Dunfermline, Clydebank and Third Lanark consider these proposals to be in the public interest?

This is only Stage 2 of the Bill. Stage 3 is still to come. That may be the case, but legislation on a football right to buy suddenly looks a whole lot more likely.

I declare a small, insignificant interest. I had some background discussions about the human rights implications of this proposal, but others like James Mackenzie did far more work on this than I did.

Posted in Fitba, Land Reform, Law | Tagged , , , | Leave a comment