A land reform explainer for a primary school project on the Highland Clearances

A friend recently got in touch to ask me if I would be willing to assist with her daughter’s primary 7 project. For readers outside Scotland, primary 7 is the last year of primary school before entering secondary education.

The topic for this project was “The Highland Clearances”. By way of disclaimer, I did not choose this topic, and I do not know why it was chosen. It is pretty interesting though, and – in my humble opinion – I am happy that primary school kids are looking at this kind of subject. I know I did not study this particular topic in depth when I was at primary school (furth of the Highlands and Islands). For information, the school that this project was written for was also outwith the GĂ idhealtachd.

Another disclaimer: clearly, I am not a historian to trade. My role was to answer questions about the future. The questions I was asked were not chosen by me and I did not seek to change them. Those questions and my answers are set out below.

Before doing that, I will address the relatively well-known challenge for academics, which is to explain things for those outside their discipline in simple terms. I confess, I sometimes stuggle with this. How did I get on with this particular task then, trying to explain things for a youngster? Judge for yourself. I did find it difficult not to caveat or footnote everything I said, or elaborate to the nth degree, but I tried. The fact that I tried made me think it might be worth sharing this as a blog post as well, so here goes.

That’s enough background. The questions and my responses are below. The final words are those of the report writer.

And yes, I did ask my friend for permission before publishing this as a blog post!

And yes, I know in other circumstances it would be appropriate to say [citation needed] for some of the statements I make in this post, but forgive me – it was a primary 7 project! 🙂

Highland Clearances – have things changed?

I have interviewed a man called Malcolm Combe who works at the University of Aberdeen as a Senior Lecturer in Law and I have asked him some questions about his opinion about the Highland Clearances and how we can be sure this will never happen again.

1. Why do you have an interest in land law?

I enjoyed studying it when I was at university. The rules made sense to me and I found that I was quite good at it. I then continued to research it after I was a student and it has now become a specialist area. Also, I have quite an interest in history, particularly the history of Gaelic Scotland (my mother comes from the Isle of Lewis) and the “land question” has been an issue in the Highlands and Islands for many years. It has also been an issue in the rest of Scotland too though, and I recently discovered that Mary Barbour – who was involved in the Glasgow Rent Strike that took place around the time of the First World War in protest at greedy landlords raising the rents quickly – was born in the same village as I grew up (Kilbarchan).

2. Do you think it was fair the way people were made to leave their homes during the Highland Clearances?

Many owners of the land were quite – how can I put this – enthusiastic in trying to introduce what they though was the best and most profitable use of land. This often took little account of the people who had traditionally occupied the land. A traditional way of life was scattered to the winds, and people were forced to either emigrate, move to the cities or move to worse areas of land with scarcely any preparation for that. And the market for the sheep that replaced the people crashed a few years later, so in hindsight it seems like it was all quite short-sighted.

3. After the Highland Clearances were there any changes in the law to try and protect people?

Yes. The first big change was the Crofters Holdings (Scotland) Act 1886, which ensured that those people who were still on land were protected from drastic rent increases, were given money for any improvements to the land they had made, and were not evicted from (made to leave) land if they were behaving themselves and doing all they were supposed to. Around the time of the First World War there was some resettlement of land that had previously been cleared, and there have been some other changes as well (see below).

4. Could something like the Highland Clearances happen again today or are there laws to prevent it from happening?

Not in the same way, no. Tenants (so people who occupy land with the agreement of the owner) of agricultural land are protected from being forced to leave just because a landowner wants to do something else in many circumstances. And also there are increasing numbers of community owners, who are less likely to evict people in a way that the disconnected owners who evicted people in the Highland Clearances did.

5. Has anything been done to encourage people to move back to the Highlands?

In the 20th century there was the Highlands and Islands Development Board, who brought employment and electricity to the area by doing things like hydroelectric schemes. There were also grants available to help people to build houses in rural areas. Now, there are some rules to allow communities to obtain ownership of land.

6. I have read that by the 1990s 80% of Scotland’s land was owned by just 0.08% of the population with half of the land being owned by just 500 people. I don’t think that is very fair. Have the Scottish Government done anything to try and make this fairer and do you think they will do more in the future?

Laws were passed in 2003, 2015 and 2016 to encourage community ownership of land. The Scottish Government has committed to getting 1 million acres of Scotland (about 1/20th of Scotland’s land area) into community ownership in the next few years and they are just over halfway there. There are also rules to try to encourage people into rural farming opportunities and some land uses are being looked at closely with the potential for future regulation (for example, grouse moors and deer forests). There is also a new Scottish Land Commission that is studying land issues in Scotland and that are considering what other countries do with their land to see what Scotland can learn.

It was very interesting to hear what Malcolm had to say and that the government are taking steps to try and prevent something like this ever happening again and to make land ownership fairer.

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Some reflections about Nature Conservation and the Law of Evidence

On 15 June 2018 I was involved in an event at the University of Aberdeen alongside my then colleague at the School of Law, Dr Phil Glover. We were joined by Ian Thomson from RSPB Scotland and Tim Baynes from Scottish Land and Estates. An outline of the event (written beforehand) is available here, and some photos and brief commentary from after the event can be found here. There is also a thread of tweets from the @RuralLaw Twitter account, available here. This is a short post to draw together the various resources about the event, and also to develop a couple of topics that were discussed on the day

Why did we host the event?

The whole event spun out of a series blog posts commenting on certain legalities involved with decisions not to prosecute anyone for apparent instances of wildlife persecution – in this case against birds of prey – as reported on BBC Scotland. These posts are digested and commented on in an earlier post on this blog and also a post by Dr Glover at the University of Aberdeen School of Law. That post by Phil sets out some of his academic thoughts on the issue, and flags a comment piece he contributed to the legal journal the Juridical Review.

That sort of explains why we had the event, but why did we have it when we did? Important as the issue of nature conservation is at any time, my ulterior motive for having the event in June 2018 was Phil’s impending move to Perth, and not just the Perth down the road. He has secured a job at Curtin University in Western Australia. I am sorry to see him go and I wish him well. I was not going to let him go without giving him one last hurrah though. Accordingly, I set about trying to organise suitable panel to actually discuss the issue in a practical and pragmatic way, and certainly not in a legalistic or purely academic lawyery way. I was delighted that Tim and Ian agreed to join us in Aberdeen at a time which suited us; thanks again to them for coming to Aberdeen for this.

What was discussed?

The event itself involved me setting the scene (see the already linked blog posts for that), then I handed over to Phil to explain the position with regard to non-authorised covert surveillance. (N.B. not illegal surveillance, necessarily, simply surveillance that is operating outside the authorisation regime provided in the Regulation of Investigatory Powers (Scotland) Act 2000.) In some of these instances which have attracted media comment, there has been footage obtained on a camera positioned on land without the prior consent of the owner or land manager. Had this positioning been done by the police, a robust approval process would need to have been followed. It would seem strange if essentially private actors – laudable as their motives of nature conservation may be – could obtain evidence without following any particular process that would automatically be admissible in court. (Please note this is me paraphrasing, criminal evidence lawyers might be cringing at my inarticulate synopsis here.)

 

There has also been some discussion about whether – in land law terms – positioning cameras might be allowed owing to the fact that the land is accessible for recreational, educational and even some commercial purposes in terms of the Land Reform (Scotland) Act 2003. I spoke to the reasons why this statute might not actually help private investigations like this, as the legislation does not cater for objects being left unattended on land. Separately, and as has been noted separately in correspondence from the Crown Office and Procurator Fiscal Service dated 30 May 2017 (as explained and linked to in my earlier blog post), access rights are for certain purposes only. Those purposes do not extend to the investigation of crime.

After I spoke, Ian then explained how he saw things from his perspective as an investigations officer at RSPB Scotland. I think it is fair to say his frustration at the difficulties involved in prosecuting those who would cause harm to Scotland’s protected birds of prey (in terms of the Wildlife and Countryside Act 1981) was palpable. Tim then offered some practical views about land management and expressed reservations about widening the admissibility of evidence obtained by covert surveillance, highlighting concerns about privacy for residents and employees. (Privacy was also touched on in Phil’s presentation.)

Ian Thomson

Tim Baynes

That was the organised part of the event. And immediately prior to the event, Phil, Ian, Tim, and I were interviewed by Kevin Keane of the BBC for its BBC Radio Scotland show Newsdrive. Our feature starts around 1 hr 45 minutes into the show and is available online here until 15 July 2018. Listening to that, and the comments above, should give a flavour of formal proceedings.

What else was discussed at the event?

This blog post will now try to gather any other insights from the discussion that followed. And it was a wide-ranging discussion. Conversation very quickly moved on to satellite tagging of birds and situations where these have either failed (suspiciously?) or have apparently been tampered with. I am not offering any comment on that, but needless to say evidence of an instance of tampering is not automatically evidence of a crime by an identifiable individual, so it was not really what the seminar was about. Another issue raised in discussion (by Ian) was the analogy of covert surveillance in a residential care home, which might be deployed by a family member to catch mistreatment of an elderly relative: would that be admissible? And is there a difference? (Quickfire answer: perhaps yes, as this hypothetical situation involves criminality to a human, but again I oversimplify.)

Discussion

Plenty other matters were discussed, involving privacy matters and (for example) usage of “dashcam” footage taken from passing cars in court.

From all of the discussion, I think three legal comments made on the day are worth noting here, as I do not think they have been raised in detail in this particular context.

First, to amend the Regulation of Investigatory Powers (Scotland) Act 2000 to allow for private surveillance by a body like the RSPB would need primary legislation. That is to say, an act of parliament would be needed.

Second, to allow for the Wildlife and Countryside Act 1981 to operate without having to worry about the regime in the Regulation of Investigatory Powers (Scotland) Act 2000 would also require legislation. This is because of the public law norm that a later statute prevails over an earlier statute when it comes to statutory interpretation. (Thanks to my colleague Mike Radford for this insight. Again, I am probably oversimplifying this.)

Finally, and indeed this was the final point raised on the day, if the law is not able to practically work, is it now time for a licensing regime for the businesses operating in places where birds of prey have been coming to harm?

What next?

And having thrown that cat among the pigeons about licensing, I quickly move on. That is probably enough about the law and law reform, I think. In fact, I am acutely aware the law is only part of the story, and at this point I will link to a recent blog post by Isla Hodgson (who we were lucky to have in the audience on the day of the event) which serves as an introduction to many of the aspects involved here.

I know a lot of this is a hotly contested area, and Phil and I have rambled into it with the impunity of academics who are not dealing with the issues day to day. I hope our thoughts have been welcome though. The well-attended and, I think, well-natured seminar that we hosted makes me optimistic that our incursion into nature conservation and related legalities from evidence and land law was worthwhile. I also know the event attracted some interest from the Crown Office and Procurator Fiscal Service, although you will have to take my word for that.

In drawing this post to a close, I will offer links to these tweets reflecting on the event: one from another attendee, Libby Anderson from the charity OneKind

Libby Anderson

…and this from one of our speakers, Ian Thomson.

Ian Thomson tweet

Last but not least, two people who attended the event promptly drew my attention to this story on the BBC about golden eagle eggs being taken from a nest, which happened to be reported on the day of the seminar. I know this is but one report, and anecdotes should not be over-egged, but this does serve to show the issue of raptor persecution is not going away.

I don’t pretend to have a magic law reform solution to offer at the moment.

It does seem fair to say that the laws that are supposed to protect Scotland’s important wildlife are struggling to operate within the existing framework.

Further analysis and consultation will no doubt follow but, from the discussion aired at the seminar and elsewhere, we now know what many of the issues are. Accordingly, it seems fitting to conclude with the words tweeted by Libby Anderson: “Let’s get on with it then.”

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Law clinics and pro bono publico in the internet age – the SULCN Conference 2018

This blog post by me was first published by Scottish Legal News. It is reproduced here with permission.

On 6 June 2018, students and staff from seven of Scotland’s universities met at the University of Dundee for the seventh annual conference of the Scottish University Law Clinic Network (SULCN). They were joined by representatives and observers from the Scottish legal profession, with support from the Law Society of Scotland who kindly sponsored the conference.

After an introduction from Elizabeth Comerford of the University of Dundee and me on behalf of SULCN, the opening keynote was delivered by Mike Dailly of the Govan Law Centre. Whilst Dailly now works in Glasgow, he grew up and studied in Dundee, allowing him to offer a number of local anecdotes in the process of highlighting some of the important work he has been engaged with to further access to justice in Scotland, the UK and indeed the EU.

The theme of Dailly’s talk was “virtual pro bono”, but he also spoke about very traditional pro bono publico (for the public good) work and his involvement as a volunteer giving legal advice in Castlemilk. He went on to describe his modern interest in “fintech” and the overarching goals of open access to information and legal rights. As part of this, he highlighted his work in areas such as:

  1. bank charges, where a pro forma letter that could be sent to banks which he drafted essentially went viral, tipping the balance in favour of some banking customers who may have felt alone until then;
  2. payday loans, where he was involved in devising an accessible resource to help provide clear access to the law and solutions that could be deployed against unscrupulous individuals who might be pursuing debtors; and
  3. his campaign about the “bedroom tax” (which led to increased charges relating to dwellinghouses that had previously enjoyed certain reliefs) with Jonathan Mitchell QC, which led to Article 13 ECHR being successfully “read down” and providing a remedy for someone with a medical condition.

Returning to the theme of the conference, Dailly considered where law clinics might fit in. In his view, students are ideally placed to develop online resources for the public to use. He also noted clinics are strategically placed to play a role in triage (to refer people to suitable agencies and solutions), and that SULCN itself can play a part in that.

Meanwhile, he noted that virtual pro bono might extend to using technology to play a part in rural empowerment and access to justice, perhaps to help an adviser to chat with anyone facing an unmet legal need in places that would be tricky for an adviser to get to in person. This was a theme returned to in the later presentation on the Scottish University Land Unit.

Dailly concluded by noting that law clinics, law centres and other third sector organisations can have a crucial role in identifying problems, campaigning for reform, and engaging with research. The research role is something that those in a university setting might be particularly suited to. A vibrant discussion followed afterwards, about matters like social security reform and law clinic involvement in employment tribunal cases (this being particularly relevant to the University of Strathclyde Law Clinic). Whilst that discussion was not recorded, Dailly’s inspirational talk is available online.

The next session was a joint presentation by Pippa Robertson from the Community Ownership Support Scheme (COSS) of the Development Trusts Association Scotland and me. This was about the new Scottish University Land Unit (SULU), which seeks to deploy the enthusiasm and skills of law students in a manner that can empower Scottish communities to make use of local land. Details of the scheme can be found on the COSS website and on my blog. The scheme is currently in a pilot phase at the University of Aberdeen, but it is ripe to be rolled out across other universities, even where there is not an existing law clinic, not least because the scheme is structured in such a way as to not require each individual university to take out its own insurance policy or anything like that. As to what students can do to help, they might offer support in relation to the various community rights of acquisition which now exist in Scotland, or they might be called on in relation to more traditional property law issues. In this vein, Robertson explained a few of the ways in which law students from Aberdeen have helped so far, where they have provided information about rights of pre-emption, access disputes, and encroachment.

There was then a short session where representatives of Glasgow Caledonian University Law Clinic, Aberdeen Law Project, and Edinburgh Napier Law Clinic explained their respective structures and gave an indication of the kind of cases and public legal education projects they are engaged with. Representatives from the University of Abertay then explained their link with Citizens Advice Scotland, delegates from Strathclyde highlighted how they made use of drop-in sessions at places like the Mitchell Library in Glasgow, and the model of case supervision at the University of Edinburgh – where a volunteer solicitor assists a postgraduate student on the Diploma in Professional Legal Practice course – was discussed. A session such as this has been an ongoing feature of SULCN since it was launched, to allow for the sharing of ideas and models with those who might wish to start a clinic and existing clinics who may wish to branch out into other areas.

This was followed by a presentation from Sarah Webb, a student at the University of Abertay who explained a new interdisciplinary project between that university and Police Scotland to help close cold cases about missing persons. This has attracted some coverage in the press, such as this item on STV News. She explained the methodology that was being deployed – which will involve trawling relevant newspapers one month either side of a reported find of a body or body parts – and the hope that this use of student resources might just provide a bit of closure to a family that has so far been denied that.

After that innovative talk, the more traditional legal world of litigation was explored, albeit with reference to a new device that will be of particular interest to those involved with pro bono litigation (including, potentially, law clinics). The recent Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 allows for “pro bono expenses orders”, also known as “legal volunteering orders”. These will allow a party who has been represented pro bono to be awarded “expenses” after successful litigation. The existence of such an order might lead to an increase in settlements (where currently someone facing a pro bono represented party does not need to worry about the non-existent costs when negotiating a settlement) and, where settlement has proved impossible, an opposing party will no longer benefit from an accidental windfall.

Any money recouped can then go towards a worthy cause. This was explored in an article I contributed to the Journal of the Law Society of Scotland, available here. In the discussion about these devices, the issue of which charity might be nominated by the Lord President to receive sums from pro bono expenses orders was raised. The English and Welsh model seemed to be popular: there, money is paid to the Access to Justice Foundation, who will then normally remit 50 per cent back to the frontline agency who obtained the order, with the other 50 per cent being allocated to other worthy projects. Whilst one existing Scottish charity was mentioned as a possibility – the commendable Lawscot Foundation – it was queried whether a more direct access to justice charity might be more suitable. There may be discussion around this to follow in the future.

The final speech of the day was from Alison Atack, the new president of the Law Society of Scotland. In her closing address, she pointed out some striking figures about those in Scotland who can’t get access to legal support, and pondered what any future system for legal support might look like with reference to the “unbundling” approach the Dutch are undertaking for their legal aid. Her talk gave much food for thought and also some inspirational words for the law clinic sector.

The last act of the day was to note that the next conference in the summer of 2019 will be at Edinburgh Napier. You can watch for updates about that and keep an eye on the future activities of the network by following @SULCN on Twitter.

Thanks to everyone who contributed to the event, particularly Liz Comerford and the team at the University of Dundee for hosting and the Law Society of Scotland for its sponsorship. Tweets from the day can be found via the hashtag #SULCN or here.

SULCN18

Elizabeth Comerford (L), Alison Atack and Malcolm Combe

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Exclusion Erosion – Scots property law and the right to exclude

I have published a chapter in a new edited collection of essays, entitled “Exclusion Erosion – Scots property law and the right to exclude”. An open access version of the paper is available here.

There is no abstract in the chapter for me to quickly cut and paste from to explain what it is about. Accordingly, here is a very quick attempt to capture that.

For some, the ability of owners to exclude others from interfering with something that they own is fundamental to the right of private property. This is understandable: if an owner cannot stop (for example) someone else from coming into her house or driving off with her car, what exactly is the point of ownership? Away from these obvious examples though, the extent of this “right to exclude” does merit some attention. There also seems to be a particular need to do this from a Scots law perspective, owing to the lack of a specific Scottish interrogation of this issue in the light of the various theoretical and other approaches, and also owing to the recent land reform measures that have been pursued in Scotland (notably the “right to roam”). My paper is an attempt to explain how Scotland has allowed this right to exclude to be eroded to an extent other legal systems might find striking, whilst highlighting that Scots law still retains a recognisable and workable property law regime.

So that is the story about the substance of the chapter. This blog post also offers a chance to explain the story behind the chapter.

In 2015, I presented a paper at the University of Aberdeen at the conference in honour of Professor David Carey Miller. A collection of online material from that conference can be found here. My paper was one of several presented at that conference, with a view to collecting contributions into a festschrift (a celebratory book) for Professor Carey Miller.

In February 2016, Professor Carey Miller died suddenly. My blogged tribute to him from 2016 is available here. The planned book then evolved into a book in his memory. This has now been published by Aberdeen University Press, under the title Northern Lights: Essays in Private Law in Memory of Professor David Carey Miller, edited by Douglas Bain, Roderick R M Paisley, Andrew R C Simpson and Nikola Tait.

The book will be formally launched at the next lecture in the bi-annual Lord Rodger Lecture Series, which will be delivered by Lord Pentland on 20 July 2018.

Incidentally, Lord Pentland’s lecture is entitled: “A wicked murder mystery: Lord Rodger and the mens rea of murder.” You can book for that event here.

Festschrift extract

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Winds of change? Crofting, community and renewable energy development in the Hebrides

This is a blog (sign)post, directing to another blog post that has just been published over at the School of Law at the University of Aberdeen’s blog.

Needless to say, I wrote yonder blog post. The legalities of it made me think it was appropriate to post over at the uni rather than on my own WordPress, but do rest assured I did run it past colleagues to ensure I was not just using the cachet of a School of Law blog to make a point.

I hope the post serves as a decent primer to all the crofting issues that surround this particular potential onshore wind farm development up in Lewis. I am aware it is quite lengthy: it weighs in at 4,000 words or so. (I am not sure if a post of that length still counts as a primer.) That attracted comment from one colleague who looked at the post; indeed, I broke my own rule about optimum length for a blog post. The logic for such a lengthy post was to set out crofting law as best I could to any non-specialists that might be reading, and also to cover off any issues in as balanced a fashion as possible. And believe me, the post could have been longer, if I had tried to capture all the energy and planning niceties that are also in play.

I will leave that post to speak for itself, although I will offer a final comment before I do so. I am aware that – despite my own connections to Point – I am on the outside looking in. I am also aware that as far as many people are concerned the stakes are high. This meant I did not tread on this ground lightly. Now that I have done so, I do hope the post serves a useful purpose and is received by all parties in the spirit in which it was intended. I would be happy to continue with any dialogue around this topic as best I can.

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Abandonment of land in Scots law, with reference to the Scottish Coal case

This is a blog (sign)post, directing to a note that has just been published in the Edinburgh Law Review on the abandonment of land in Scots law.

This is a topic I was studying last year (see this blog post trailing a research seminar) and the note is hopefully the first piece of a bigger jigsaw. The note was co-authored by Malcolm Rudd, a former student and research assistant. That research assistance was supported by the Carnegie Trust for the Universities of Scotland, which I gratefully acknowledge in the note and again here.

The topic of land abandonment is something that Richard Cramer, a PhD candidate at the University of Cape Town, has also been exploring (as explained in this blog post). Abandoned land is something that is topical in Scotland at the moment, but for very different reasons to why it is topical in South Africa. In Scotland, there will soon be a right to buy neglected, abandoned or environmentally detrimental land, and draft regulations have been put forward explaining what counts as wholly or mainly abandoned or neglected. My note is not about this sense of abandonment, it is more about an owner actively trying to escape the responsibilities and possibly even financial burdens that come from ownership. That is what happened in the Scottish Coal case, which I explore in the note. I also consider why such instances of purposeful abandonment may not have been litigated in the past, with reference to the old Scottish feudal system, the rules around positive (acquisitive) prescription, and the increased tendency towards public regulation of land in the modern era.

You can access the Edinburgh Law Review article here (ÂŁ) or an open access version of the note here.

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Scottish University Law Clinic Network Conference 2018 – 6 June at the University of Dundee

The seventh annual conference of the Scottish University Law Clinic Network (SULCN) will take place in Dundee on the afternoon of Wednesday 6 June 2018.

The keynote will be given by Mike Dailly of the Govan Law Centre. I am delighted that Mike will be joining us to talk about access to justice; whilst it’s not a competition, I think it’s fair to say there are few people in Scotland, if anyone at all, who has championed this cause as much as he has. There will also be content on the day about the new Scottish University Land Unit and the usual chance to discuss issues that can arise in the establishment and supervision of law clinics.

Tickets are available here: it is free to attend, but booking is required.

Thanks to Elizabeth Comerford and her colleagues at the University of Dundee for hosting the event and to the Law Society of Scotland for supporting the event.

UPDATE: the programme is available here (PDF).

SULCN18

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