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.

STAT ATTACK

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.

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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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