A Gaelic train of thought

I have an Opinion piece in The Scotsman today, about Scots Gaelic and signage, available here. This is a (sign)post directing to it and offering a bit more background.

In terms of tags for this blog post, I have filed it under “Gaelic” and “FFS WHY DO PEOPLE LIKE ME STILL NEED TO WRITE ABOUT THIS SHITE”.

The article was written in response to an Opinion piece by a gentleman I have never met and, until last week, had never heard of. He was irked by a bilingual sign that he saw from a train whilst passing through Fife.

My mind has also been known to wander whilst gazing out of a train window, although normally I leave those thoughts when I disembark without writing about them. Wilson decided to channel his thoughts into an Opinion piece. With respect, his article demonstrates the nuance of someone who thought about a topic on a train for five minutes. Perhaps he should have left those thoughts on the train. It is difficult to know where to begin with a critique of it, but I gave it a try.

The Scotsman actually toned down my response, which they were entitled to do. Something like that preceding paragraph was in my first draft. I also wrote that his analogy with Northern Ireland demonstrated a loose understanding of the language issues in two jurisdictions, and noted that his attempt to make an argument out of there being no Gaelic monoglots was “so simplistic, culturally imperialist and ignorant of minority rights it does not even deserve engaging with.” (Only “simplistic” remains in the final version, and I cut the NI point owing to the word limit.)

For background, this is not the first time I have dabbled in the Gaelic signage issue, with all the related law and policy matters that so many people do not event begin to understand before wading into the topic. This is illustrated by way of a Storify story here and another blog post here.

Anyway, that is enough from me. I actually have other things to do, and (as noted at the end of my Storify story) for some people this is not so much about actually wanting to analyse the issue sensibly, rather it is about lobbing a cat amongst the pigeons then smirking as someone else tries to restore some order to the doocot. I really am tired of writing about this cac.

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SULCN Conference 2017: Beyond the Campus

On Wednesday 7 June 2017, the sixth annual conference of the Scottish University Law Clinic Network will take place at Glasgow Caledonian University.

This is a short blog (sign)post to direct you to other resources about the conference, namely the information page hosted at the GCU Law blog (with speaker biographies here) and the free booking resource available via EventBrite here.

As a reminder, SULCN is an organisation that brings together the various pro bono activities at the Scottish universities, as detailed here. This year’s event is about whether and (if so) how law clinics can move “beyond the campus”.

It would be great to see you there, both to hear about any ideas interested parties might have for Scottish law clinics, and also to showcase what some of our law clinics are up to. For those that cannot make it, I will be undertaking my usual tweeting on the day (from the @SULCN Twitter account) and thereafter will try to capture my tweets and the tweets of other delegates in a Storify story.

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National Parks in South Africa – a Scotsman’s perspective

Just under four years ago, I posted on this blog about National Parks in Australia and Scotland. My trip to South Africa on research leave and a short trip within my bigger trip has opened up the possibility of another wee post about national parks there, so here goes. Hopefully this will be of interest to people in the UK and South Africa. Before going any further though, I should reiterate my thanks to the Carnegie Trust for the Universities of Scotland for providing funding for my travel to South Africa and (in case anyone is wondering) please note I took a few days annual leave to facilitate a long weekend in Johannesburg then the trip to Kruger National Park that I refer to below, and I financed the sojourn myself.

Not much has changed as regards Scottish national parks since I wrote my post about Australia and Scotland. There are still only two national parks, the Cairngorms and Loch Lomond and the Trossachs. (The Borders and Harris have been mooted as potential park locations: work is ongoing about the former, but the latter seems to have stalled.) The law relating to national parks remains largely the same as it was, although mention might be made of the change in regulation of wild camping in Loch Lomond and the Trossachs, where the Park Authority has passed byelaws to police this. This means that the right of responsible access under Part 1 of the Land Reform (Scotland) Act 2003 will not allow for campers to simply pitch up and camp without a permit in these areas.

That reform was controversial in Scotland. Meanwhile, in South Africa, I needed a permit just to get into Kruger Park, South Africa’s oldest national park, never mind camp.

Kruger Permit

Perhaps I should have taken a photo of the gate I entered through to give you an idea of how well-staffed and secure the park entrance was, but then again the staff at the well-staffed gate looked very official and not desirous of being photographed. So here’s a substitute photo of a sign.

Phabeni Gate sign

As for wild camping even when furnished with a permit… not so much. Human accommodation (in static, caravan, or pitched form) was restricted to designated rest areas (in my case, Skukuza – more about that name and its meaning later).

Skukuza Rest Camp Entrance

Mind you, camping is also regulated in another national park area which I visited (without a permit) at the opposite end of the country.

Glencoe Quarry

Seriously, Glencoe Quarry. There are Scottish connections aplenty in South Africa. As for the Glencoe thing, I did not enquire as to whether it was possible to buy a rock and become a Laird of Glencoe as a result.

That brief comparison shows Scotland’s slight concession to camping regulation in national parks is really nothing compared to the regime in the spots I visited in South Africa. I should probably not make too much of that though, for highly practical reasons: restricting recreational humans to rest areas at Kruger is somewhat sensible, because lions and leopards and armed poachers; whereas camping in and around Cape Town is not exactly recommended for tourists in the Lonely Planet.

Enough about where I happened to go. What about the regime as a whole, as opposed to at Kruger or the Cape Peninsula?

There are 19 national parks in South Africa (compared to Scotland’s two), operated by South African National Parks (SANParks, compared to two boards in Scotland). SANParks draws its existence and powers from the Protected Areas Act 57 of 2003 (which superseded the National Parks Act 57 of 1976). Other older legislation dealt with specific national parks, with Kruger National Park being worthy of comment here. The Sabie Game Reserve – a predecessor to Kruger – was proclaimed by the then president of the Transvaal Republic in 1898 (Paul Kruger), James Stevenson-Hamilton was appointed the first warden of the Sabie Game Reserve in 1902, then the National Parks Act 56 of 1926 merged the Sabie and Shingwedzi Game Reserves to form Kruger National Park. (More on James Stevenson-Hamilton – who came to be known as Skukuza – below.) There are also public nature reserves, managed below central government level, which I will skim over in this post.

The overall function of SANParks is nicely summarised in this document as being to “protect, conserve and control the national parks and other protected areas assigned to it and to manage those areas in accordance with [section 57 of the 2003 Act]”. (The document is also available here in Afrikaans and Northern Sotho.) This broadly chimes with the Scottish approach, although apparently with more joined-up-ness. Another intriguing contrast is that the legislation providing for SANParks requires a 2/3 majority in parliament to get rid of the body.

In terms of other differences with Scotland, some of the practical points (predators and poaching) have already been highlighted. Before anyone asks, poaching activity (particularly of the rhino) in South Africa is of a different scale to any criminal activity relating to wildlife that is going on in Scotland. Can you imagine the Cairngorms authority putting out a press release like this? As for other differences, South African national parks are much older, and there are more of them, although not as many as Australia. Then there is the size of (some of) the parks. Kruger weighs in at 7,580 square miles (19,633 km²). This is almost but not quite as big as Wales, to use the standard measurement of the British press.

So there are clear differences, but there are commonalities in terms of what the national parks are for in both jurisdictions. This was evidenced in one of the displays in this museum in Skukuza Rest Camp.

Kruger National Park Museum

It highlighted the benefits the park brings (or at least claims to bring), including via environmental education, economic empowerment, and cultural heritage management. And whilst I am no brand consultant, it seems fair to say the shop on-site was doing a decent trade and Kruger Park has a certain attraction for tourists. SANParks’ website also notes it generates 75% of its operating revenue, a fact it is somewhat bullish about.

That museum also detailed some other interesting trivia, which I will summarise below, and in turn tie it a bit to the land question.

The first display in the museum has a quote from someone from a local township about the importance of the conservation and tourism aspects of the park, which seems a good sign. Then the inevitable land issues that pervade South Africa come into play, as Voortrekkers then the South African (Anglo-Boer) War arrive. We also discover a bit more about James “Skukuza” Stevenson-Hamilton, whose Shangaan or Swazi name means “to sweep away like a flooding river” or “he who sweeps clean”, a name bestowed for his early efforts to control poaching, and (more tellingly) his steps to move people living inside the park to elsewhere. The last removals from Kruger National Park took place as recently as 1969 (during the apartheid-era). Perfunctory eviction letters are on display in the museum, telling inhabitants to leave and making no provision for their alternative accommodation. (By way of contrast, the museum also notes there were no forced removals in the Mkhuze Reserve in what is now KwaZulu-Natal.) To say this was a thought-provoking read for someone who was drawn to the area as a tourist for the whole safari thing would be an understatement. [EDIT 9 May – I have since discovered a successful land reform claim was made in relation to part of Kruger National Park by the Makuleke community. See below.]  The display then concluded with some possibilities for the future, including transfrontier work with Zimbabwe and Mozambique. That takes matters somewhat away from my national park focus, so I will not say anything more about that.

As for Stevenson-Hamilton, I read a bit more about him in the “WAC Campbell Museum Hut”. (Incidentally, Campbell was a founder member of the National Parks Board, along with a bunch of other white men.)

Campbell Museum Hut

In that museum hut, I learnt that Stevenson-Hamilton was born in Dublin in 1867, and that there is a Scottish connection. His mother was heiress to the estates of Fairholm and Kirkton in Lanarkshire, apparently. The museum also made reference to a couple of Scottish farmers that were in the area. So there you go.

Anyway, that is enough about national parks. Here’s a nice picture of a zebra crossing… [EDIT but please note I have added some more text below about that actual land claim involving Kruger National Park.]

Zebra

UPDATE: When I was doing some reading in the library at the University of Stellenbosch today, I stumbled upon a reference to a land claim involving Kruger National Park in the book Re-conceiving property rights in the new millenium: towards a new sustainable relations policy edited by Ben Chigara in a chapter by Munyaradzi Saruchera and Sibongile Manzana. I was intrigued and after a quick internet search I can confirm that, yes, a successful land claim for approximately 24,000 hectares was made under the Restitution of Land Rights Act 22 of 1994 in relation to a removal that happened in 1969. A judgment handed down on 15 December 1998 essentially gave effect to an agreement that the interested parties had come to regarding this (those interested parties being the Makuleke Community, SANParks, and various state and government entities). That agreement had been entered into by those parties in the knowledge of the direction of travel in South African land reform. An online story about this can be found here and the event is noted in the relevant timeline on the SANParks website.

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Ten signs it’s time to stop and ask for help: guest post by Lucy Reed

This is a guest post from Lucy Reed, a barrister with who blogs at Pink Tape and tweets as @familoo. Anyone a) vaguely legal or b) generally interested in life should really be following her anyway, but just in case you do not this is how she describes herself on Twitter.

Family lawyer & blogger . Ovaries of steel, abs of jelly. Author Chair .

I am delighted she has shared this post with me and I don’t want to get in the way of it with a long introduction. I will quickly note how this blog post came about though.

A few weeks ago there was some publicity in England & Wales about McKenzie friends – legally unqualified buddies who provide support but not legal advice to people in court – and specifically student and remunerated McKenzies. The blogs Nearly Legal (by Giles Peaker) and Lawyer Watch (normally by Professor Richard Moorhead, but in this case a guest post by Dr Leanne Smith) posted about this topic. Lucy posted about it too. I recommend all those posts. I watched this unfold from a safe Scottish distance, although I did wonder if there might be a slight amount of collateral damage to some student pro bono activity, a topic and a cause I have an interest in. I also wondered if there might be some good that could come out of this, namely an opportunity to remind students, junior practitioners, McKenzies, or whoever that there can be times when you have bitten off more than you can chew. It is important both to minimise those situations and know how to react to them when they arise. I asked Lucy if she might offer her wisdom on the topic and she agreed. Over to Lucy to explain.

(For Scottish readers, I have added a couple of footnotes to give the Scots law equivalents when English examples are given.)

Ten signs it’s time to stop and ask for help

To survive as a law student or newly qualified lawyer you have to project confidence even if you don’t feel confident all of the time. But it’s important never to forget the value of humility. Humility protects you against career ending errors.

Being a cocky little wotsit may be a good short term coping strategy, but not if it leads you into making some daft mistake which will have ripple effects for your career and your client’s life. It’s far better to ask a colleague, your supervisor or senior for help when it turns out you didn’t really need it than to wing it and have to go to them after it’s all gone pear shaped.

I’m assuming here that you are a law student doing pro bono / clinic work or a newly qualified lawyer being let loose on stuff you may have seen but haven’t done before.

So. When do I need to pause and ask for help?

  1. When you’re starting out, pretty much everything will be unfamiliar territory. Those things that are almost like the scenario in the text book but not quite – those are gonna trip you up. ASK.
  2. When your client asks you a question you don’t know the answer to. It’s ok to say “I need to check the answer to that”. Have your phone a friend on speed dial. DO NOT WING IT.
  3. When the judge asks you a question you don’t know the answer to. It’s ok to say “I need to check the answer to that – may I have five minutes?” or “May I come back to you after the luncheon adjournment?”. Have your phone a friend on speed dial. DO NOT WING IT. (Hint – the judge knows you are inexperienced. The judge was in your shoes once. Most judges will cut you some slack.)
  4. When there is something you really didn’t get in law school and you glossed over it and fortunately it didn’t come up in the exam and… all of a sudden you’re confronted with it – NOW you gotta confess all and ASK. (Mine was the difference between tenants in common and joint tenants*. And basically the whole of the law of equity. Don’t tell anyone.)
  5. When you’ve flip flopped more than once on the right answer to something. TALK IT THROUGH WITH A COLLEAGUE.
  6. If it’s outside your usual field – ASK.
  7. Student / pro bono schemes: if it’s outside the parameters of the scheme you are operating under. It’s not just okay to say, “this is not within the scheme.” It’s a must. You are probably running under someone else’s insurance. If it’s not within the scope of the scheme that is for a reason. Don’t be an idiot. CHECK WITH YOUR SUPERVISOR.
  8. When you find yourself thinking “this would be an amazing case to have on my CV! I could take it all the way to the Court of Appeal**”… STOP. Talk it through with someone who has been doing it for more than five minutes. You don’t get any glory for crashing and burning in the Court of Appeal. The exciting prospect of a “big case” can wreck your objectivity.
  9. If your case depends on overturning a Court of Appeal or Supreme Court / House of Lords authority – you might be right. But check with someone more experienced.
  10. If you have a nasty sicky feeling in the pit of your stomach that you are out of your depth – you might be right. Or you might just be a really fantastic young lawyer with a smidge of imposter syndrome. But you don’t know until you check. SO CHECK.

Here’s the thing. I’m fifteen years call. They call me a senior junior. I still get that sick feeling in my stomach sometimes. I ask for help or a double check from colleagues all the time. Sometimes from contemporaries, and sometimes from those more senior than me. A good lawyer is open to the idea that they might be missing something, that there might be another way to approach a problem, and can see the value of a fresh pair of eyes. Phone a friend saved me from many scrapes as a junior barrister – use it. And never be ashamed to be smart enough to ask others what they think.

If you’re reading this and think it’s rubbish and it doesn’t apply to you: it does. Come back and read it again in 5, 10 years time and consider this: I told you so.

Lucy Reed

[SCOTTISH FOOTNOTES

*Tenancies and common and joint tenancies roughly equate to the Scots law categorisations of common property and joint property. As for equity in general, good luck with that…

** For Court of Appeal, that would equate to the Scottish Court of Session.]

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A visit to Stellenbosch Legal Aid Clinic

As mentioned on this blog previously, I am on research leave at the moment. This has taken me to Stellenbosch in South Africa. There are a few reasons why Stellenbosch has been my appointed destination, mostly to do with land law and specifically land law reform: thanks again to the Carnegie Trust for the Universities of Scotland for providing funding for this research trip. I hope it, and my readership, will forgive me for a dalliance in another interest: student law clinics. At the same time as having lots of interesting land matters to keep me occupied, the University of Stellenbosch has a long-established Legal Aid Clinic. Since I was in the area, I arranged to visit.

The Legal Aid Clinic, or Regshulpkliniek in Afrikaans, is very different to the law clinics I have visited before. That point was aptly demonstrated by the fact the receptionist greeted me in Afrikaans. It actually took me a moment to twig she was speaking to me, as another thing that I was busy taking in was that the reception area was rather busy (with the adminstrator, case workers and a client all buzzing around the reception desk), but when I did realise I answered in English and the receptionist switched to that language. Later, whilst I was waiting for one of the clinicians based at the Clinic to greet me (having for once in my life arrived early for an appointment), there was a moment when the client was struggling to understand the instructions that were being given to him. I suspect such language issues prevail in South Africa more than they do in Scotland: after all, there are eleven official languages in South Africa, not to mention contemporary immigration from other parts of Africa. The staff and/or volunteers (I am not sure of the exact staff/volunteer mix that I was witness to) handled the issue as adeptly as they could.

I then met one of the team of staff working at the Clinic, whose enthusiasm for all matters clinical legal education shone through. In fact (and I am not just saying this) he told me he had read and referred to my article ‘Selling Intra-Curricular Clinical Legal Education’, and it was gratifying to know my that work had been useful to someone else and indeed somewhere else. My article had apparently a certain relevance to do with the possible introduction of a third-year compulsory module that would involve practical work: some simulated, some clinical. I will keep my eyes open for developments surrounding that and blog about developments in that regard when it is possible to do so.

We also spoke about the organisation and the day to day running of the clinic. Apparently there was a staff of around 15 (which is more of a staff than any of the Scottish law clinics), including paralegals and qualified solicitors. The building itself – a relatively short walk from the School of Law – was dedicated to the law clinic. I was also shown the sign-in sheet for the month of April: something like 100 clients had called on the clinic between 1 and 25 April.

Perhaps I should take a moment to pretend I understand the situation in South Africa as regards access to justice. Whilst I am an outsider to the situation in South Africa, there are a few South Africans who have already given me something of an insight. In fact, one South African in particular is somewhat to blame for my ongoing interest in pro bono work, namely Professor Donald Nicolson. Yes, his name does appear somewhat Scottish, but he is a South African who founded the University of Strathclyde Law Clinic when I was an undergraduate. I have a rough recollection of his stories of the somewhat unregulated clinics that sprung up in the second half of the 20th century in South Africa, and my understanding is that Stellenbosch’s Legal Aid Clinic started off as students doing their own thing before coming under the supervision and banner of the University. I also have a rough recollection of Donald telling us about the nature and volume of cases South African law clinics had to contend with, which I suppose can be best explained by reference to a recent article in the International Journal of Clinical Legal Education by the man himself: ‘“Our roots began in (South) Africa”: Modelling law clinics to maximise social justice ends’.

Mention must also be made of the legendary Street Lawyer, Professor David McQuoid-Mason, another suspiciously Scottish-sounding South African. David has been a great friend of the Scottish University Law Clinic Network (for example, attending events in 2013 and 2014) and I recall his stories of the huge classes of law students he trained in Street Law teaching or the inquisitive children he taught through Street Law.

Lastly, I should acknowledge the two South Africans who Skyped into the Scottish University Law Clinic Network conference in 2015, who gave insights into pro bono public interest litigation. One particular case they spoke of was in connection with obtaining access to HIV retrovirals for expectant mothers, a tremendous achievement and again an example of the kind of things where there are access to justice issues in South Africa. And it is not just access to justice or indeed access to medication that are issues, it is also access to the civil, political, cultural, economic and social rights that I am guilty of taking for granted. This is a nation that ‘is home to the biggest inequality gap in the world’.  That media statement I have just linked to is from the Nelson Mandela Foundation, issued on Freedom Day. Freedom Day commemorates the first fully democratic elections in South Africa, which happened on this day in 1994. That was a watershed moment, but it was not a magic wand that fixed everything.

So what can I learn from this visit to a South African law clinic, and South Africa in general?

First, there are teaching lessons, in terms of comparing and contrasting course offerings. Aberdeen at the moment offers an elective (non-compulsory) third-year course, whereas Stellenbosch could be moving towards that compulsory offering by way of a third year module incorporating the clinic. That said, a direct lesson is instantly qualified by the fact that South Africa does not have the same vocational training phase as Scotland has (via the Diploma in Professional Legal Practice), which is a reason why a compulsory practical skills course could be extra suitable in South African law schools. Meanwhile, Aberdeen might be moving towards offering a Diploma elective in clinical legal practice, but there is no direct lesson for me from Stellenbosch.

Second, there are organisational and practical lessons, in terms of comparing and contrasting the Stellenbosch model and indeed the scale. If the Aberdeen Law Project – the student-led pro bono initiative based at the University of Aberdeen – was to try to upscale in such a way, this would require serious consideration as regards supervision and accommodation. Plus, it would be wrong to upscale just for the sake of it: I have not undertaken any comparison of legal aid in Scotland and South Africa, so I do not have a fully formed idea how much of a comparative gap there is to plug as between the two jurisdictions (but I do note there is a co-operation agreement between Legal Aid South Africa and a number of universities, including Stellenbosch).

As such, there might be some take-home lessons for me. Although perhaps the main take-home lesson is that there is a squad of committed staff and students at Stellenbosch trying to make a difference, for the public good. Good luck to them.

One final thought: amidst all the other stuff we spoke about, the clinician I spoke to asked me about the official reason I was in South Africa, namely to research land law reform. The key question for that South African, who has day to day experience of fighting evictions for indigent persons using devices like the Extension of Security of Tenure Act 62 of 1997 (in rural and peri-urban areas) and the  Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (in urban areas), was as follows: why are you land reforming in Scotland? I began my usual exposition, but as I was explaining I could not help but reflect on the size of the township I passed between Cape Town and Stellenbosch, and in turn reflect on the huge issues that post-Apartheid South Africa still has to contend with. That media statement of the Nelson Mandela Foundation highlights that ‘an estimated 200,000 people have no homes to go to’. Even the airport which I landed at is faced with its on land question. For fear of making any glib comparisons, I will leave the topic of access to land in Scotland and South Africa hanging for now, but that is something I will return to.

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Land Rights and Land Responsibilities: An Audience with the Chair of the new Scottish Land Commission

The University of Aberdeen’s May Festival 2017 runs from 26 to 28 May.

I am delighted to be playing a part in a free event on Friday 26 May at 14:30, which is explained as follows.

In one of the first public events of the new Scottish Land Commission, its Chair Andrew Thin will introduce the Land Rights and Responsibilities Statement.

Analysing what it and the new Land Reform (Scotland) Act 2016 mean for the management, use and regulation of land in Scotland.  The discussion will be opened up to an expert panel, led by Malcolm Combe.

Ticket Price: FREE/Booking Required

Venue: King’s Conference Centre

This will look at land reform in Scotland, with a special focus on the land rights and responsibilities statement (which I blogged about here). I will welcome Andrew Thin, the Chair of the Scottish Land Commission. This is a Non-Parliamentary Departmental Body (a “quango”, in old money) established by the Land Reform (Scotland) Act 2016, which has been operational since 1 April 2017. Mr Thin will give us his take on the new organisation before being joined by an expert panel comprising Andrew McCornick (the President of NFU Scotland), Annie McKee (of the James Hutton Institute) and Anne-Michelle Slater (who happens to be my Head of School, but also a worthy panellist in her own right).

I am hoping to attract as diverse an audience as possible. Those involved explicitly with the discussions should bring something for: the lawyers (me); those with sectoral interests (I suppose most specifically agriculture, but other sectors by analogy, via Andrew McCornick); geographers (via Annie McKee); and planners (via Anne-Michelle Slater). If those topics do not pique your interest, audience participation will of course be encouraged, and as such do come along with your own questions on whatever you think is relevant to Scotland’s land. If you cannot make it on the day, please consider commenting below with a question, and I can use such questions at the event in the (I think unlikely) event that discussion stalls.

You can book for free online here.

 

 

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Review of Legislation Governing Small Landholdings in Scotland

Some of my research interests and related blog posts are somewhat niche. True to form, here is a short post about an esoteric part of Scottish land law. Actually, now that I think about it, it might be a bit generous to describe the topic of this blog post as niche, but here goes…

This post is about small landholdings in Scotland. These are a type* of rural lease that:

  1. can be found outwith the traditional crofting counties (of the Highlands and Islands); and
  2. are not governed by the agricultural holding** regime.

The statutory system of crofting was introduced to parts of Scotland by legislation passed in 1886, but the rest of Scotland had to wait until 1911 before its smallholdings were subjected to similar, and rather powerful, statutory control. (The effect of this gap in time is something I have blogged about before.)

The regulation introduced related to matters like compensation for improvements (namely what a landlord would have to pay a tenant for any works introduced by the tenant) and security of tenure (meaning the ability of a tenant to hang around on land even at the end of the original term of a lease, provided rent was being paid and other obligations complied with).

For a variety of reasons, there are not that many of these regulated leases still kicking around. Notwithstanding that relatively low number – which seems to be settled at 74 (yes, seventy-four) – there has been a perception that these leases have been ignored when other leases have not. In part, any neglect is ably demonstrated by the mass of legislation about crofting and agricultural holdings, but of course the low numbers of small landholdings also explains that lack of legislative attention. That point notwithstanding, it may be the case that parties to such leases do not have a particularly clear handle on what arrangement they have, not to mention there are arguments about whether these parties have an arrangement that is suitable for the present day, and as such it is a worthwhile exercise to have a look at small landholdings.

Enter Part 11 of the Land Reform (Scotland) Act 2016. This was the result of a Scottish Green Party amendment at Stage 3 of the then bill, which I blogged and tweeted about at the time. This committed Scottish Ministers to: a) review the legislation governing small landholdings; and b) lay a report of that review before the Scottish Parliament no later than 31 March 2017. This the Scottish Ministers have done. The Report can be found here (PDF here).

The Report is an impressive piece of work. I declare an interest, in that I had some limited input to it: a couple of drafts were circulated to me and I commented on them. To be clear though, I declare that interest to give the credit to those that deserve it, and that is decidedly not me. A lot of people inputted to this document, and of course those directly affected by the proposals (the landlords and tenants) provided data for the exercise, so any credit is due to them. This blog post has skimmed over some of the details about small landholdings, whereas the Report goes into the background, the current regime, and the potential for the future in far more detail than I can here. I will offer a few quick thoughts on its interpretation of the future though, to highlight that it narrows down three options, namely:

the status quo;

conversion to another type of tenancy; or

reform and modernisation.

The Report then suggests two of them are not appropriate, as: maintaining the status quo would lead to further diminution of numbers of small landholdings (with unclear effects on rural Scotland); whilst mass conversion of small landholdings into another type of tenancy is just not quite suitable (as, for example, you could end up with crofts outside traditional and even recently expanded crofting areas, not to mention it could have an uncertain effect on already settled positions between landlord and tenant).

That leaves the reform and modernise option. Much could be said about this, but the two key issues that came up in consultation with respondents related to clarity of legislation (which is a bit of a bùrach across many statutes at present) and a right to buy: irrespective of the undeniable politics of a right to buy, it is clear that small landholdings missed out on such rights in 1976 (when an absolute right to buy was conferred on crofters) and 2003 (when a right of first refusal was given to secure “1991 Act” tenants of an agricultural holding).

What next? Naturally, the Scottish Parliament will get the chance to ponder the Report, but paragraph 170 of the Report sets a number of future steps. Some of these might involve the Scottish Law Commission, the new Tenant Farming Commissioner, and the Crofting Commission. Other steps could involve researchers looking into historical data and trends relating to small landholdings, and (either related to that historical research or independently) the likely socio-economic impact of them in the present day.

To conclude, despite the relatively low numbers of small landholdings in Scotland, there is a lot of work to be done in relation to them. I will be watching carefully to see what happens next. Meanwhile, those involved with Scotland’s remaing small landholdings will be watching even more carefully than me.


*The Small Landholders (Scotland) Act 1911 actually introduced two different regimes, where someone who rented a smallholding could be a “landholder” or a “statutory small tenant”, depending on whether it was the landlord or the tenant who had built the structures used for that smallholding. Generally speaking, a statutory small tenant has less in the way of statutory rights than a landholder.

** Agricultural holding used to be the best term to use for that regulated form of lease that prevailed across much of Scottish agriculture, but Lord Gill’s new book on the matter has – after three editions of being called The Law of Agricultural Holdings in Scotland – changed its name to Agricultural Tenancies, to reflect the various other ways people have been able to let land in rural Scotland since the Agricultural Holdings (Scotland) Act 2003 came into force (with more methods still being provided for by Part 10 of the Land Reform (Scotland) Act 2016). Whilst I have no problem with that title (and if I did, I would have mentioned it in my recent Scots Law Times review of the book), I fear the term “agricultural tenancies” in this blog post could cause confusion to some readers. Much like this helpful explanatory note probably has. Sorry.

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