A Square Foot of Old Scotland: Ownership of Souvenir Plots

In the most recent edition of the Edinburgh Law Review, you will find a short article by Dr Jill Robbie (of the University of Glasgow) and me on souvenir plots in Scots (and English) law. An open access version of the article is here.

I sometimes link to publications in my blog, just to signpost what I have been doing to those who may not be paying attention to legal journals. I did not bother doing that for this short article, but recent news coverage has encouraged me to do so now.

On 29 September 2015, a number of outlets carried a story about a conservation oriented activity for the Scottish wildcat.

The National: Become a laird – and help save the wildcat

STV: Bid to create Highland reservations for endangered Scottish wildcat

Further press is also available on the Wildcat Haven website.

This activity has been described as “crowdfunding”, a fundraising route that is increasingly common. Wildcat Haven is perhaps not an orthodox crowdfunder, in that it invites participants to purchase a square foot of land, together with a certificate, a “glossy booklet” and a DVD for £30. There is then a sliding scale of optional extra purchases, helping to pay for a lure stick, a radio collar or a camera trap.

A square foot of land,” eh?

So what else does that “Buy a Plot” bit of the Wildcat Haven website say?

Supporters obtain a personal right to a souvenir plot of land in Wildernesse Wood and may change John Smith to Lord John Smith of Wildernesse by using documentation we provide.

I offer no comment on how John Smith may decide to style himself after this purchase, and good luck to him: for all I care he can call himself Lady Nancy, whether he buys a gift pack or not.

From a property law perspective, note the lack of assertion about the acquisition of ownership. You “obtain a personal right“. You have a contract. You do not have a real right of ownership. That statement made about a personal right does not wind me up quite as much as a statement printed in the National, namely:

Wildcat Haven has borrowed a model from commercial sponsor Highland Titles, a gift company that sells micro plots of land in its nature reserves allowing any landowner to style themselves as a laird or lady.

Sorry, what? Landowner?

Yes, we have thrashed this out before, at length and sometimes in an entertaining fashion.

Dr Robbie and I tried to draw a line under it in our Edinburgh Law Review article, when we built up to a straight-forward final sentence including the words “sellers of souvenir plots are not providing their customers with ownership of land.

Do we need to have this chat again?

As for the Wildcat Haven scheme as a whole, Andy Wightman has blogged about that.

UPDATE: 1 October. The Wildcat Haven FAQ has some slightly familiar wording within it. Here is a comparison of the opening paragraph of the Edinburgh Law Review article and some text from the FAQ. The earlier FAQ text was even more familiar, as this comparison with 30 September‘s content shows (i.e. there was originally no extra sentence about pole squatting).

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The Reform of Succession Law in Scotland: Guest Blog by Roddy Paisley

On Tuesday 22 September, Professor Roddy Paisley gave evidence to the Delegated Powers and Law Reform Committee on the Succession (Scotland) Bill. This deals with technical issues on the law relating to inheritance, with a view to being enacted in the Succession (Scotland) Act 2016. Some more substantive issues are to be left for a second bill. Also giving evidence were Professors Janeen Carruthers and Elizabeth Crawford, both of the University of Glasgow, and Nick Holroyd and David Bartos from the Faculty of Advocates, who both specialize in trusts and succession law. David Bartos is the co-author of the most recent edition (the 6th) of Professor Michael Meston’s classic book on the Succession (Scotland) Act 1964 published just a few months ago.
What follows is a selection of observations from Roddy about his involvement in the proceedings. It is – unashamedly – technical and legal in its outlook (unlike my own recent blog on the recent consultation about further succession reform). Over to Roddy for his analysis.
The observations of Professor Paisley
Proceedings at the Committee opened with the panel being asked if we considered a complete codification of succession law would be a good idea. I indicated it would not, although a restatement of the existing statutory law in a single Act would be good. I also indicated the Forfeiture Act 1982 – based as it is on English law – might well be a prime candidate for repeal and restatement in a form more attractive to a Scottish reader (more on that below).
The particular matters discussed included the following:
(a) Survivorship. There is a new formulation of this for common calamities to remedy the various flaws in the 1964 Act, s.31. A point discussed is whether there should be an exception to prevent property in such a case going to the Crown as ultimus haeres and allowing any other human being to inherit. This would avoid the result that occurred in Drummond’s Judicial Factor v HMA 1944 SC 298. I think that is a good idea as it would be consonant with what most people want even if it involved their in-laws. I indicated to the committee that just under 1000 years ago the Spanish Jewish scholar Maimonides (1138-1204) confirmed that all people are related so this default inheritance by the state logically should never occur. Whether one accepts the narrative of the story of Adam and Eve or bases one’s view on a theory that we all came out of Africa with a single ancestor – DNA will show that the consequence of one of these is indeed true – the problem for a survivor is usually a lack of proof. So, the Committee were delighted to hear that each of their individual members could potentially inherit from each other. In contrast, the Crown as an institution never dies, so the dice are loaded against mortal human beings
(b) Rectification of wills containing drafting errors. It is intended to extend this statutory power to mortis causa deeds as present legislation is limited to inter vivos deeds. The Bill originally indicated the power was to be extended to these wills where they were “drafted” by a lawyer but the general view of those giving evidence was that this should be extended to a will “prepared” by a lawyer as this is wider. As yet there is no settled view as to whether it will be extended to “home made” wills. Personally, I would prefer if it did not as a house of a deceased may contain dozens of lists in preparation for a will and there is a difficulty of evidence for a lawyer who clears the house. I also indicated that there is a real chance of fraud and stated that whilst I am generally very impressed by the character of the average Scot, people are never quite so avaricious as when they have the chance to get something for nothing i.e. potential beneficiaries. However, I accept there is a reasonable case to be made for the contrary view and to allow rectification of home made wills and the contrary view is taken by very respectable people such as David Bartos and Nick Holroyd (members of the Scottish bar) who also gave evidence. The problems of proof of true intent with home made wills even without any prior documents to suggest another meaning are significant. However, this actually gives rise to a potentially bigger issue raised by the committee. What is a home made will? In this connection the issue of wills made by internet download begins to arise and that may be a very big issue for the future. There was no clear decision on the day but this issue will come back, I am sure.
(c) I am glad to say the originally proposed abolition of the conditio si testator was taken out of the present Bill for future consideration due, not least, to the fact academic colleagues (including the administrator of this blog) and Dot Reid wrote during the consultation. The Law Society of Scotland gave a submission to say it is now convinced by the academic analysis that it affords valuable protection to minor children. That is a major alteration from their previously expressed view. It would seem my three articles on the matter sent in as part of the consultation have had some “impact” – if I might dare to use that word (which is somewhat loaded in academic circles).
(d) Donationes mortis causa are to be abolished. However the present drafting in the bill abolishes donationes mortis causa but, in the same sub-section, allows gifts “in contemplation of death”. I indicated to the Committee that this English wording is a literal translation of the Latin phrase and is a little like abolishing one thing and then immediately permitting it. I think they saw the point.
(e) The conditio si instititus (the implied destination over to descendants in wills) is to be abolished and then promptly re-enacted in a Section spelling out almost all of its existing effects in English. I have no problem with this. However, I pointed out this new proposed section in its present draft starts with a phrase such as “where a direct descendant is named as a beneficiary in a will and predeceases the testator before the gift vests”. It is this word “named” that bothers me. I indicated that many grandparents may not know (or may have forgotten) the names of all their grandchildren so this wording “named” should be changed to read “identified”. So too a bequest to “all my grandchildren” would have the same problem. I want the section to work in all cases.
(f) The major existing flaws in the Forfeiture Act 1982 are to be remedied (it allows relief in certain circumstances to allow a killer to inherit). That 1982 Act is an Act that is drafted in English terms and is restricted to notions of public policy exclusion. I indicated the present drafting still does not deal with the Scottish concept personal unworthiness. I indicated this 1982 Act is a terrible piece of legislation from the UK Parliament that was altered late in the day to include Scotland. It treats Scotland like “Scotlandshire”. It really should be got rid of entirely and completely re-enacted in a Scottish form.
(g) There is to be a reform of survivorship destinations in titles to deal with difficulties on divorce. This contained phraseology that “where a survivorship destination is contained in a “document”… ”. I indicated that the present proposal of the Scottish government is to have all land in Scotland on the electronic Land Register of Scotland within ten years. As a result, there will be no more “documents” of title because the survivorship destination will be contained not in a deed or document but, instead, a Title Sheet. So, as it stands, this section of the bill would cease to be viable within ten years. A small technical alteration will serve to deal with this small but important point.
(h) Professors Carruthers and Crawford from Glasgow University gave evidence on technical aspects of private international law. I bow to their expertise on that matter. The evidence of Nick Holroyd and David Bartos was also very impressive and confirms a vibrant practice of the law that continues to engage with difficult legal issues. It is significant that all the contributors of evidence spotted different aspects of the Bill that could do with improvement. It confirms my view that academia and practice work well together on such an important area of law as the law of succession.

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Consultation on the Law of Succession – Some Thoughts

Let us begin with a variation of an old joke.

Tam Reid was a farmer and a shrewd man. Before leaving this mortal coil, he directed that his family should keep his death notice in the local newspaper short. After all, the local newspaper charged for each word in the notice. His preferred wording was as follows:

“Tam Reid, from Bogheid, is deid.”

On Tam’s passing, the bereaved family duly put the notice in the newspaper. Staff at the newspaper could not help but feel that this notice was short, and contacted the family to ask them if they wanted to include another few words, at no extra cost. The family gratefully agreed to this, and submitted the following death notice.

“Tam Reid, from Bogheid, is deid.


Welcome to the law of succession, also known as inheritance, which regulates what happens to your property when you die.

The rules of succession apply in circumstances where you have left a written note of your last will and testament – perhaps directing what is to happen to your farm, your tractor, your investments and your beloved collie called Dìleas – and when you have not. Tam’s story gives a brief insight into a situation where a will has been left. The wishes of a deceased person are important, but so too are the interests of the family of that deceased person, as are the interests of society as a whole. A properly functioning system of succession law will seek to balance those interests in a way that is suitable for contemporary society, but that is not always an easy balance to strike. And where there is no will, the property of a deceased person will need to, somehow, be distributed. Ideally that should happen in such a way that people close to or financially reliant on the deceased are not overlooked, but once again that involves the balancing of many different considerations.

Whilst the law of succession can be thought of as a standalone category, it touches on other areas of law and practice, including family, property and tax. (Inheritance tax is reserved to Westminster, so no more will be said of it here.) This can lead some people to gloss over succession, or perhaps view it through the prism of another specialism: for example, those interested in land reform might not be thinking about the modern place of the family unit when commenting on the ideal model of succession for a fair distribution of immoveable property across society.

It is also of crucial importance to everyone. As the Flaming Lips celebrate, “everyone you know some day will die.” If you are lucky enough to live to a healthy age in Scotland, you will almost certainly have to contend with an executry at some point. All of this makes getting succession law right very important.

The most recent Scottish Government consultation on the law of succession closed yesterday. It wrestled with a lot of different areas and I can do no better than to direct you to Dr. Dot Reid of the University of Glasgow’s analysis of it. In the headline of that blog, you will immediately see land reform and succession being mashed together. Land reform and succession reform have not always been analysed together in this ongoing pre-legislative process (see this from Reid’s colleague Dr. Frankie McCarthy), but it is fair to say the current land reform debate has reinvigorated the succession debate.

I swithered about whether or not to put a response in. With my own involvement with the Land Reform Review Group, I am more familiar with the land reform angles, and I almost felt I should leave this to others. Then again I have taught succession at university: former students reading this may recognise my bad joke and references to songs that reference the inevitability of death. Eventually I swithered towards responding, and at the eleventh hour, I put in a selective response (PDF).

From a property lawyer’s perspective, the headline news is the potential removal of the different treatment of immoveable and moveable property. At the moment, the effect of this differentiation is to allow land and buildings to be left in a will without fear of challenge from a surviving spouse, civil partner or child. This compares to a situation where moveables (perhaps a tractor, investments or a collie dog) are left in a will, and a partial challenge to the will could be made in relation to the moveable estate.

As already noted on this blog, this differentiation looks to be doomed, and in principle I think this reform does make sense. The differentiation is not generally found in other jurisdictions and it can have what appear to be arbitrary effects, that might stem from lifetime choices that were made without considering succession. This reform was advocated by the Land Reform Review Group.

Of course, there are always difficult cases. From a land reform perspective, this difficult case is flushed out in Chapter 3A of the consultation, which looks at agricultural units. The division of a large estate (where such a large estate is owned by a natural person) into two or more units might not seem objectionable to some, but what about a smaller family farm that simply could not function when sub-divided in that manner? Never mind Tam’s tractor, what would happen to Bogheid, assuming Tam is survived by two sons and two daughters where three of the children are keen farmers but two of them are so thrawn as to be unable to reach a resolution amongst themselves as to what to do with the farm?

Here I extract my responses:

Q31 Should there be exemptions (limited or otherwise) for certain businesses from claims for a spouse/civil partner’s legal share where there will compromise the commercial viability of the business?

[The options were Yes/No/Don’t know. Curmudgeon that I am, I did not answer.]

Please give reasons for your answer:

My answer adopts the form of “No, but…”.

In principle, I am in favour of a system that does not discriminate between different categories of immoveable property. That said, a narrow exception might be appropriate if the future of a viable unit was actually threatened. Guidance might be sought from section 13 of the Crofters (Scotland) Act 1993, which prevents a forced sale of a croft tenancy area from taking place where that sale would leave the remaining estate no longer viable.

32 If there were to be exemptions from claims for legal share, do you think it would be possible to define those types of businesses which would be exempt with precision?

[Again, I did not answer.]

Please give reasons for your answer:

I do not think it would be impossible, but I appreciate it could be tricky. This section of the consultation is about agricultural units, so perhaps linking the test to agricultural output (current and prospective, after a forced division).

A rule of blanket application could have an unwelcome impact on small units in the agricultural sector, so I offered one model where an apparently absolute system can be relaxed. There may be other examples, and indeed another thought occured to me post-submission in relation to co-owned property.

The law of Scotland already has a system in place to deal with the situation where owners of an item in shared ownership fall out. One or more of them can raise an action to either: a) divide the item; or b) where that is not possible, sell it. Division does not need to be impossible in the physical sense: one important case related to a co-owned estate on the Isle of Bute and the court chose not to parcel it up into smaller sections, as that would affect the viability of the estate as a whole. Perhaps something similar could be developed. There may also be a role for devices like lifetime renunciations of rights to a farm (for children who are not interested in farming), so a degree of flexibility could be built into the system to reflect what families agree to.

These are not simple issues to deal with and it is right that the consultation takes on the views of many different sections of society. Holyrood and its committees will have much to consider and any reforms will have a profound effect: as Bruce Springsteen notes, “everything dies, baby, that’s a fact“. Which leads on to the final point I made in my consultation (and elsewhere): if there is reform, this must be accompanied by a blitz of clear and comprehensible publicity to reflect its far reaching impact. Without that, Tam’s children might find themselves arguing about far more than the words of a death notice.

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Scots Gaelic, Scots law and Scots attitudes

On 1 September I posted a Storify about the often sneery and regularly ill-informed commentary that flies around on the internet about Scots Gaelic. This blog picks up on that, in a blog of two halves: a legal “blawg”, about legislation that relates to Gaelic; and some further personal insight.


One recurring trope, touched on in the Storify but easily found elsewhere, relates to the Scottish National Party’s apparent crusade for Gaelic. As I alluded to in the Storify, this is questionable. The key Holyrood legislation about Gaelic was enacted by a Labour [EDIT: and Liberal Democrat, see comment below] administration. The referendum question could have been rendered in Gaelic and English, but it was not, which contrasts with the fact the Welsh language will feature in the future EU referendum in Wales. At an international level, it is the UK – as a nation state – that is signed up to the European Charter for Regional or Minority Languages: sure, the nation state might have tried to subcontract that to the devolved administrations, but as far as other nation states or the Council of Europe are concerned that makes no difference. If, for whatever reason, someone was to argue that the UK Government was being remiss in its treatment of non-English languages in Northern Ireland, devolution would be no defence.

What other statutes are of continuing relevance to Gaelic in the present day?

Two I blogged about recently, in terms of crofting law and the Scottish Land Court, being the Scottish Land Court Act 1993 and the Crofters (Scotland) Act 1993.

Also of relevance to Gaelic are:

  • the Local Government (Gaelic Names) (Scotland) Act 1997, a short statute that confers a power on a local authority to change its name into Gaelic and back to English if it changes its mind later (only Comhairle nan Eilean Siar has done so);
  • the British Nationality Act 1981, which (in Schedule 1) asks for a sufficient knowledge of the English, Welsh or Scottish Gaelic language for naturalisation [note the disjunctive “or”, it is possible to become naturalised in the UK with no English];
  • Some rules about education, such as the Grants for Gaelic Language Education (Scotland) Regulations 1986, but with education being such a specialist area I am not going to look into that any further.
  • Some rules about broadcasting, such as section 183 of the Broadcasting Act 1990 (a section that has changed over the years, but has always been about Gaelic).
  • the European Convention on Human Rights (PDF), which provides for many things including rights for those arrested (in Article 5(2)) and charged or on trial (Article 6(3)) to be dealt with in a language they understand (which is of limited relevance to contemporary Gaels appearing in Scottish Courts, but there might still be situations where this could be relevant, and see above regarding the very unlikely situation of an immigrant who has opted to learn Scots Gaelic rather than English or Welsh);
  • Other international instruments about cultural heritage.

There may be others, but I can detect some readers becoming bored by legislation. Let me now pose a question: other than Gaelic (or language in general), what do all of these measures have in common?

Not one of them was enacted by the SNP.

Sure, Holyrood legislation regularly bestows Gaelic names on statutory bodies, and letterheads might be changed accordingly, but all the substantive rules I have mentioned owe nothing to the SNP. From a statutory point of view, all the SNP can be thanked for is not sinking what was already constructed.

To sail on with that maritime analogy, I think it is perfectly fair to characterise the SNP’s treatment of HMS Gaelic as “steady as she goes” or, if it is any stronger than that, they have emboldened the crew of the boat and made sure they have plenty ammunition, in the event that the crew feel the need to engage in any Gaelic gunnery. They have not upgraded the weaponry or ordered a new boat.

Believe me, the SNP could have done more. Here are two ways. First, they could have insisted on a bilingual #indyref question [politics alert, that might have had a skewing effect on polling day, so non-inclusion of Gaelic was perhaps a political move, albeit one that is open to criticism from a minority language perspective]. Second, they could have amended the Gaelic Language (Scotland) Act 2005 to give Gaelic official status, rather than simply “equal respect”.

So what are they being criticised for?

Of course, governments do not just make (and unmake) law. Governments also spend money, which ties in with my idea of tooling-up HMS Gaelic with the best armoury a minority language can ask for. Even then, my (completely unprofessional) opinion is the SNP have not gone overboard and, as pointed out in my Storify, the whole Gaelic signs thing was kicked off before the SNP got anywhere near minority or majority government.

To conclude this part of my post, by all means criticise government, but please do it in a way that is sensible and not in a way that can catch a rather tender minority language in the process. And for those criticising the SNP in particular, I would have thought there is a danger the more vociferous #SNPout anti-Gaelic weirdness will ostracise many Gaels who are well and truly nothing to do with the SNP. In case you had forgotten, such Gaels do exist: after all, the Western Isles region voted No in the independence referendum, and the result was initially announced in Gaelic.

A personal view

I confess, the legal blawg above was not entirely impersonal, interspersed as it was with personal views. What follows now is definitely a change in writing style, in that it is not some law coupled with random observations, rather it is me on a soapbox.

On the same day I published my Storify, the pro-independence website Wings over Scotland published a post about Gaelic. It was primarily a takedown of a silly tweet by Jackson Carlaw MSP, which also features in that Storify.

I can imagine pro-independence Gaels clicking through to that post like an expectant child on Christmas day, rushing through to see what Santa Wings had left. And yes! Santa Wings provided the Jackson Carlaw voodoo doll, as requested, complete with all the necessary pins and instructions on how to use them.

But Santa Wings also did something else. After coming down the chimney, Santa Wings left a big, festering jobby on the hearth. “Why did you do that?” a disgusted Gael might ask. “People have jobbies,” Santa Wings responds. “Deal with it.”

To stretch this shit analogy to flushing point, just as people have jobbies, they also have opinions. You can argue about a fact being right or wrong, but opinions are trickier beasts to handle. After fronting-up that he (that is to say, Rev. Stuart Campbell) anticipated the loss of (Gaelic lobby) friends, the Wings post calls Gaelic “obsolete”, it glosses over any cultural heritage argument for the language, acknowledges bilingualism but big-ups other languages instead of Gaelic, argues (with reference to a newspaper report) that bilingual signs can stop people keeping their eyes on the road as much as they should, then notes:

Non-primary native languages are a tool whose main utility in practice is at best the exclusion of outsiders, and at worst an expression of dodgy blood-and-soil ethnic nationalism. They’re a barrier to communication and an irritation to the vast majority of the population, who are made to feel like uncultured aliens in their own land.

It is fair to say not every Gael was massively enamoured with this. I won’t address all those points here (but see this blog for a more detailed overall response than I can offer, this on why learning Gaelic instead of Mandarin is not so daft after all, and this from Transport Scotland and this academic paper on the difficult issue of whether bilingual signs can be problematic (selective quote ahoy, from that second source and based on a sample of English and English/Welsh participants, “drivers were able to read one and two-line monolingual signs and two-line bilingual signs without disruption to their driving behaviour“)).

The Gaelic world being relatively small (yes, I acknowledge this simple fact can be readily fashioned into an argument against the utility of Gaelic) means I know or know of some of the people who engaged in the initial backlash to the piece. In fact, I am related to one of them, Ruairidh Maciver. Here is their conversation:

To take up Maciver’s initial point, I know what he was getting at, namely the fact that Gaels were and sometimes still are a people who can be made to feel alien in their own land. Where he perhaps left his defences open, and where Campbell promptly thrust a riposte, was suggesting English speakers don’t ever feel like that. They might well feel like that, and it certainly isn’t the fault of this generation of English speakers that Gaelic has “lost” in the game of languages, be that by:

  • a desire to communicate and trade;
  • active government policy aimed at subordinating the language (think Statutes of Iona, Proscription after Culloden (even though Gaels fought on both sides of that battle) and the 19th century Education Act);
  • a legal system that allowed clan chiefs (or whoever took over from them) to improve land with little regard for its (often Gaelic speaking) inhabitants; or
  • whatever else it is that makes a language decline (a point analysed in this timely book review about the Welsh language).

One way English speakers would not have to worry about feeling like uncultured aliens in their own land is in the imagined world where a combination of Scots (the language) and then English had in fact completely pushed Gaelic into the Atlantic, hence why Gaels can feel a bit vulnerable. Fortunately (in my opinion) we are not in that counterfactual, and Gaelic still has a toehold.

How would an English speaker stop feeling like that? The two ways I can identify would be for Gaelic to finally and completely go the way of the dodo, or for non-Gaelic speakers to come to some kind of a rapprochement with the continuation of Gaelic.

More on rapprochement later, but what about the language being “obsolete”? Here is where I might lose friends, but I hope only temporarily: I am well aware that much of Scottish society does not and probably cannot function entirely in Gaelic. Two personal examples follow.

When I was a practising lawyer (in Edinburgh), I did not transact in Gaelic. There was one occasion when I was asked to speak to an elderly client who was making a will, but for whatever reason that did not happen. Everything else was in English*.

When I had health concerns, all relevant medical conversations (in Aberdeen and latterly Glasgow) were undertaken in English**.  The Gaelic for “metastatic” and “pulmonary embolism” did not really feature in childhood conversations, but I do a mean line in household commands. (Or perhaps ignoring household commands, if you ask mo mhàthair.)

Do my examples, from Scotland’s legal world and healthcare, mean we are we past the tipping point for the language? And even if we are past a tipping point, does it matter?

Here is where I may regain some of my Gaelic minded friends. First, and even with my examples, I don’t think we are past a tipping point. I think Gaelic can and should have a continuing role to play in aspects of Scottish life, as per my blog on the Scottish Land Commission.

If I am wrong and we are past the tipping point (if indeed there is a tipping point), allow me to return to the idea of rapprochement. People need to remember Scotland would not be Scotland, and Britain would not be Britain, were it not for the Gaels. This is something that was touched on by Wee Ginger Dug in a wonderful post, written when the Gaelic snark seemed to be building up its bizarre head of steam. One thing not really mentioned there is the martial element of Gaelic history in the British Empire. Of course, it is not to everyone’s taste to discuss the various British adventures, but beginning in the 18th century we can note that the Gaels of Wolfe’s army – yes, he of the “No great mischief if they fall” quote – were crucial in winning Canada from the French. Highlanders fought, with varying degrees of success, in the American Revolutionary War, in Louisiana, in India and in the Napoleonic Wars, then formed a Gaelic speaking thin red line in the Crimean War. Moving into the 20th century, the people of Lewis invested much in the Great War and perhaps suffered particularly for that, as so eloquently detailed in this recent Guardian article. My own great-grandfather somehow survived the sinking of the HMS Formidable in 1915, as narrated by my cousin Ruairidh Maciver (yes, he who conversed with Campbell) in this blog. Moving to a later war, Gaels gave much to the Royal Navy and the Merchant Navy: my great uncle was lost to a German torpedo. Stories like that abound in the Hebrides.

From martial to music. Without Gaelic there might well be no ceòl mòr and much less ceòl beag (the big and little music of the great Highland bagpipe), which only survived by virtue of an oral tradition. I appreciate my love of piping is not shared by all, but I think this merits inclusion in the contribution of Gaelic to modern Scotland. Cherry-picking bits of Gaelic culture, like piping, whilst omitting the Gaelic it is built on is something that I have never understood and I think it fundamentally cheapens that which is picked. Another personal insight that I think merits inclusion is the interest I have found in Gaelic when I have been on various piping trips. Requests for Gaelic happen with a surprising regularity and, as I often found myself to be the only Gaelic speaker in the Lowland pipe bands I have frequented over the years, I tended to be the one pushed forward to say something in Gaelic. I have found people from furth of Scotland to be genuinely and affectionately interested in the language. Sure, it has its limitations when you are lost in an overseas metropolis, but it has a currency of some sort. Plus, it is always especially illuminating when you can find a direct link between a foreign language and Gaelic without using English as a bridge.

So what am I asking for when it comes to present day approaches to Gaelic? An acknowledgement that Gaels do not form part of an exclusionary clique might be a start: if I speak to my brother, mother or grandmother in Gaelic, it might be because it is something that comes semi-naturally to me, as opposed to because I want to make a non-Gaelic speaker feel like an alien. And if there are times when Gaelic speakers and non-Gaelic speakers are interacting and someone does feel like an alien, are we not grown-up enough to come to some sort of understanding about that? Failing that, if anyone, taking inspiration from Jackson Carlaw MSP, still feels the need to have a go at Gaelic, can you please do so with some accuracy and with some considered arguments? (For responses to the non-considered arguments, please refer back to the first part of this post.)

I will give my final word to a comedian. Before anyone panics, no, it is not David Mitchell. Stewart Lee tells an anecdote of Margaret Thatcher visiting a university and asking a student what she was studying. “Ancient Norse,” was the answer. Thatcher was caught replying, “What a luxury.” Lee explains in this video why ancient Norse is not a luxury. If ancient Norse is not a luxury, Gàidhlig bheò certainly is not a luxury either.

*Actually, there was another time I spoke Gaelic in my time in practice when, as a trainee solicitor at Tods Murray, I was part of the delegation making a pitch to to a public body who had put out a tender for legal services. We thought the pitch went well, but it was unsuccessful.

**There were actually two occasions when I had a bit of Gaelic chat in hospital. When I was having an inferior vena cava filter fitted, the three-lady team doing the fitting was 1/3 Czech, 1/3 English and 1/3 Gael, so I had a bit of banter with the Harris lady in the radiology team. Later on, one of the many nursing students I met was from South Uist. A resounding, “Halò, agus tapadh leibh!” if you are reading this.

[EDITING NOTE: I added the footnote about the Gaelic tender at 09.35 on 4 September. Separately, social media contacts suggested I might find output by Derek Bateman and Florian Breit of interest, the latter especially in the context of naturalisation in the UK, which he is seeking to do via Welsh.]

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You can’t eat empowerment

A signpost blog, to link to a briefing that I have in August’s Journal of the Law Society of Scotland on the Community Empowerment (Scotland) Act 2015.

The opening paragraph in the briefing has a lot in common with an earlier blog post, including a reference to the Manic Street Preachers. Thanks to the editor of the Journal for allowing me the freedom of artistic expression, or should I say freedom of speech, to deploy that musical mention. Believe it or not, this is the second time I have managed to shoehorn my taste in music into the hallowed pages of the Journal: see page 9 of the Journal of June 2010, when Malcolm Combe (then of Edinburgh) felt the urge to correct an erroneous credit of “Let’s Impeach the President” to Crosby, Stills and Nash.

As for the opening line in the briefing, I am 99% sure my inspiration for that was a chat with regular community empowerment correspondent Dr Peter Matthews. I did not credit him in the briefing, so allow me to rectify that here. His up to date thoughts on the new legislation can be found here.

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The Land Reform (Scotland) Bill, and how to get two articles for the price of one

It might not have been the lead story on all channels, but today was the deadline to respond to the Call for Evidence for the Land Reform (Scotland) Bill. Responses to the Call can be (or, in due course, will be) found here.

To coincide with this august land reform occasion, I had two pieces published today.

First, in the Conversation UK: Nobility may be up in arms, but Scotland’s land reforms look fairly tame.

Second, in the Herald’s Agenda slot: How the Government’s land reform proposals could have been more radical.

It will not take much analysis to see the similarities between the articles: indeed, at one stage it was a single article. It diverged into two when it became apparent during the editing process that the Conversation’s audience (in the UK and worldwide) might need a bit more background and comparison to other countries, in a way that could get in the way of a purely Scots article. Therefore, and with the blessing of the Scottish editor of the Conversation, I pitched a punchier version at the Herald and happily it was accepted, as eventually was a beefed-up version in the Conversation.

There might be a lesson for fellow writers there: if at first you don’t succeed, try and try again…

…fail a bit…

…then eventually try two different routes to success, and somehow get both.

It does not always work out like that, but it did this time.

So what is next for the Land Reform Bill? Analysis by the Rural Affairs, Climate Change and Environment Committee, then another two legislative stages at Holyrood. Stay tuned for further land reform developments.

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Land Reform Bill – Response to Call for Evidence

Below is the text I intend to submit to the Scottish Government’s Call for Evidence on the Land Reform Bill. If you have any comments, please let me know, ideally before close of business on Friday 14 August.


The significant amount of agricultural holdings content in the Bill may justify a change in short title, by the insertion of the words “and Agricultural Holdings” after “Land Reform” (i.e. “Land Reform and Agricultural Holdings…”). Whilst I see no doctrinal problem in including agricultural holdings reform within legislation branded under the “land reform” banner (as opposed to including it in a standalone agricultural holdings statute), the inclusion of “Agricultural Holdings” in the short title would tie this legislation with other measures that affect rural leases, notably the Agricultural Holdings (Scotland) Act 1991 and the Agricultural Holdings (Scotland) Act 2003. Whilst this could seem insignificant, such a step could in fact assist analysts and commentators in the future, not least by easing future database or internet searches.

PART 1 – Land rights and responsibilities statement

There is an argument such a statement should be contained in the primary legislation itself. That said, the Scottish Outdoor Access Code (which provides guidance to access takers under the Land Reform (Scotland) Act 2003) provides a precedent for a non-statutory yet very important (and Scottish Parliament approved) document that has largely been well received.

PART 2 – The Scottish Land Commission

The place of Gaelic

See my blog on this point, which I will replicate in my actual submission.

Tenant Farming Commissioner

The Commission is to comprise five Land Commissioners and the Tenant Farming Commissioner. The one Tenant Farming Commissioner’s role is very important and, as drafted, potentially onerous. Delegation to Land Commissioners (and others) by the Tenant Farming Commissioner is possible in terms of clause 23 and that should allow for a fair distribution of work, provided a practice of effective delegation was allowed to develop.

PART 3 – Information about control of land etc.

I note that the Bill does not contain the recommendation of the Land Reform Review Group (2014) that ownership of land in Scotland should be restricted to natural persons and European Union registered entities (Part 2, Section 5 – Owners of Land, paragraph 11). As explained there, such proposals were thought necessary because of the difficulties in finding information relating to entities incorporated in certain jurisdictions with lesser disclosure requirements than those which prevail in Scotland, the UK and the EU.

There are legitimate concerns about the effect such a rule might have on inward investment or existing investment. The following proposals are offered to suggest how certain schemes could be introduced that could have an incremental effect towards increasing transparency without have as drastic an effect on investment as (to take the strongest example) some kind of retrospective ban on non-EU entity ownership. This should not be taken as a rejection of the LRRG’s recommendation. Rather, it is an attempt to set out some alternatives that might be more comfortable to both the market and legislators.

Before considering such softer measures, it is submitted that a restriction could, if drafted properly, comply with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), which operates to prevent discrimination. It could also operate alongside any information request regime, such as the one contained in the Bill as drafted. A prohibition on (for example) a Canadian individual owning land directly could be problematic: no proposal to restrict the right of human beings to own land is recommended here.

Other provisions of the ECHR are also relevant to any proposed restriction, including the right to property under Article 1, Protocol 1 (“A1P1”). If existing property owners were forced to restructure arrangements that were entered into at a time when those arrangements were perfectly legal, such owners would have a legitimate cause to complain. By making the new rule prospective rather than retrospective, that concern is mitigated (albeit with the trade-off of allowing existing (potentially non-transparent) schemes to continue).

Another means by which a rule could be introduced would be to make the prohibition of non-EU entities non-absolute. Instead, a non-EU entity could be required to make a case to the Keeper of the Registers of Scotland as to why such an entity is the most suited for the landholding arrangement being proposed. (If this role was thought to be too burdensome for the Keeper, perhaps another relevant office holder, such as a Commissioner of the Scottish Land Reform Commission, could be tasked with it.) Making that case could be twinned with a scheme to compel publication of information that would not otherwise be readily obtainable. Any test would need to be framed in a way not to discourage entities that have a genuine business reason to, for example, retain LLC status in a state of the USA.

Turning now to the terms of Part 3 as drafted, care should be taken to ensure that “persons affected by land” should not be narrowly defined, or should not be left in a way as could be narrowly defined in future, and fees should not be set (or not left in a way so that they can be set) in a way that could price-out persons affected by land in terms of access to information (clause 35).

Sanctions for non-compliance with transparency requirements are also important. For some landowners, a potential financial penalty would be sufficient incentive to comply with any scheme. For others, finances might not be as much of an issue. Two alternative sanctions are proposed for consideration.

The first sanction scheme could be modelled on section 793 of the Companies Act 2006, which is a system designed to flush out information about who controls an asset. Owners of shares can find the entitlements that a shareholder would ordinarily expect withdrawn when they are not transparent about who controls the shareholding entity.

The analogy between incorporeal company shares and tangible land is not exact, so some adaptation would be needed. Further, the suspension of a statutory scheme (for shares) is simpler to demarcate than a sanction which would involve interfering with common law rights and obligations that have developed over many years. Be that as it may, a sanction along the lines of section 793 could be more effective against a (hypothetical) secretive landowner with ready access to finance than a fixed financial penalty would be.

An alternative sanction would be to provide that any owner that does not comply with an information request would be treated as having abandoned land. Here, the word “abandoned” is meant in the sense that is found in Part 3A of the Land Reform (Scotland) Act 2003 (introduced by section 74 of the Community Empowerment (Scotland) Act 2015). The effect of this would be to render the land susceptible to community acquisition without requiring the owner’s consent.

Part 5 – Right to buy land to further sustainable development – and Part 10 – Agricultural Holdings

As the committee will appreciate, the right to property is recognised in the ECHR, as expressed in A1P1. That seems to provide a starting point for a rights-based argument against land reform, but that must be balanced against competing rights such as Article 11 of the UN International Covenant on Economic, Social and Cultural Rights, which guarantees certain rights such as sanitation, food and housing. To paraphrase Professor Alan Miller of the Scottish Human Rights Commission, human rights are neither a red card to be deployed by landowners to dismiss land reform, nor a trump to card to be deployed by those who seek land reform.

This is particularly relevant when considering the provisions of Part 5 and Part 10 (Chapter 3 – Sale where landlord in breach). As drafted, these provide schemes that seek to balance the interests of those who might be involved in a land acquisition in accordance with those schemes. It will always be a matter for careful consideration as to whether this balance is correctly struck, but it might be noted that the hurdles for the community to clear – over and above the established sustainable development and public interest tests found in Parts 2 and 3 of the Land Reform (Scotland) Act 2003 – seem high (see clauses 47(2)(c) & (d)). The word “only” in clause 47(2)(c)(ii) in particular appears to give a strong hand to anyone who would wish to challenge a decision of the Scottish Ministers.

One overarching point remains: a community or a tenant right to acquire is predicated on there being a community or a tenant, as the case may be. If land reform is to go beyond reinforcing the rights of those on the ground – that being a policy decision for government – it would be necessary to open up schemes that are not purely based on whether people are, “resident in that postcode unit…, and entitled to vote, at a local government election, in a polling district which includes that postcode unit…” (clause 42(9)) or whether a person has a 1991 Act tenancy.

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