Gotta catch ’em all, but what about the law? Access to land and #PokemonGO


This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News). That…

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Some reflections on the EU Referendum and a note on #indyref2

The UK has opted for Brexit, that much we know. There is still much that needs to happen before the UK extricates itself from the European Union. Domestic politics might yet intervene to stop Brexit. We shall see, but the current democratic situation is clear. 51.9% of voters wish to leave the EU.

I did not campaign in this referendum. I worked at the Aberdeen City count, so electoral law applied. Now that my duties are over, and in the interests of full disclosure for this blog post, I can safely share that I voted Remain.

There are many, many machinations of this vote to Leave. Here are a select few.

I look at Northern Ireland, which as a “region” voted to Remain, with more than a little concern. I have no particular expertise there so I will refrain from predictions of what will happen next for its people, other than a spike in their applications for passports issued by the Republic of Ireland.

There are machinations for higher education, as demonstrated by this statement by my employer.

There are machinations for law and legal research, as demonstrated by numerous conversations with Scots, English, Northern Irish, non-UK EU, and non-EU colleagues in the School of Law on the day after the vote. Dr. Kirsteen Shields of Dundee tweeted that she went to bed a human rights lawyer and woke up a historian. PhD students looking at aspects of EU law are probably thinking things less eloquent than WTF. There is also the matter of funding for research. (To stick to my own discipline, I understand law and legal studies gets 38.96% of its research income from the EU.)

There are machinations for the financial industry in the UK, and particularly London. Meanwhile, London’s position as a judicial centre for the the resolution of disputes is looking decidedly shoogly.

At a more human level, there are potentially unsavoury machinations for race relations in the UK. (I can offer one anecdote, which I hope a friend does not mind me sharing: she is of African descent and posted on her facebook that in the aftermath of the vote for Leave she now feels less able to shrug off any racist slurs thrown her way. The combination of racists being emboldened by the vote and people feeling less welcome really does not bear thinking about.)

The franchise for the vote itself even had implications, in terms of excluding many people who have made their lives in the UK from a decision that directly affects them. This point is explored thoroughly in a post by my colleague Heather Green.

And there are machinations for Scotland.

My introduction should make clear that the EU referendum result is about far more than Scotland. I don’t want to come across as parochial. What I do want to do is offer some thoughts on a topic I know a bit more about than Northern Ireland or the other things I have mentioned. As it happens, I have written about Scotland – and specifically Scottish independence – before.

What next for Scotland?

On 6 October 2014 I blogged about the Scottish independence referendum. Those of you who know me or know this blog will be aware I voted and indeed campaigned for Yes. Unless you have been living in a cave, you will also be aware Scotland voted No.

When you back the losing horse in a two-horse race, you tend not to be in a position to make any particular demands of those who backed the winner. As such, my post in the aftermath of the #indyref acknowledged the result, made a few observations, and quietly announced a hiatus from overtly political blogging. (Consider this post a suspension of that hiatus.)

In that post, I made a few observations about the Yes Alliance ticket that some people proposed should run at the 2015 UK general election. That did not come to pass. (What did happen was a thumping SNP performance as a de facto Yes Alliance, returning 56 out of 59 SNP candidates in the constituencies Scotland.) I did offer some thoughts about what might be next for the Scottish constitution, as follows.

Whatever the Smith Commission might come up with, independence is the one thing that is off the table. Sure, Salmond might not be the First Minister for much longer, but I think the SNP should assiduously stick to his line that the referendum would settle things for “a political generation”. Indeed, the only people who have it in their gift to change the independence timeline from a double digit to a single digit number of years are the parties who campaigned for the Union. Such a change is not likely to be deliberate. That is to say, it would take them contributing to a situation where somehow things change, perhaps by:

  1. the Scottish Parliament being abolished (very unlikely);

  2. the UK leaving the ECHR (unfortunately looking a bit more likely, but probably still erring on the unlikely side of things);

  3. the Smith Commission proposing absolutely nothing of note, notwithstanding “The Vow” and any subsequent petitions (pure speculation, the Commission needs to be given a chance); or

  4. the UK dragging Scotland out of the EU after a UK-wide referendum when Scotland voted to stay (unlikely, but what do I know?).

Fast forward to June 2016. Scenario 4 has just come to pass. Scenario 4 was explicitly mentioned as a cause for a new independence referendum in the SNP manifesto for the 2016 Scottish Parliament elections. The SNP may have recently lost its overall majority at Holyrood, but it forms the minority government and can probably call on six allies to carry the Chamber when it comes to a position on a new independence referendum in the form of the Scottish Green Party MSPs. #indyref2 beckons, it would seem, although First Minister Nicola Sturgeon has not quite explicitly called for it.

Scotland voted 62%-38% to Remain in the EU. Every local authority area voted to Remain. The vote in Edinburgh was resounding. The vote in Moray less so – it sneaked home by just over 100 votes. (Another friend, who lives in Moray, noted quite correctly that the map that shows Scotland as a glorious homogeneous polity fails to show that this was a vote that cut across geographical, cultural and economic lines.) The result in Moray means I should couch my remarks carefully, but it does seem fair to say Scotland (and Northern Ireland) voted one way and England and Wales another. English votes are bouncing Scotland out of the EU.

Does this mean all the Yes voters in 2014 get to strut around with an “I told you so” swagger? Not quite. There are nuances here. Andrew Tickell blogged about his #indyref experience of a voter who backed Scottish independence specifically because she wanted out of the EU: I wonder how she is feeling just now? Plus, views can change over time for a whole manner of reasons.

Would the Scots go for independence now? “The 45” are probably secure, except for the occasional individual like the one mentioned above. As for “The 55” who voted to remain in the UK in 2014, the EU vote is something of a game-changer. It allows the independence question to be re-cast in a positive light, or perhaps as a choice between two unions.

I am conscious what I say doesn’t really matter. I was a Yes voter in 2014. I have maintained that persuasion and I would be poised to vote Yes again if and when the question is asked again, unless someone could demonstrate to me that it would be folly.

Of more interest are the views of people like JK Rowling or Chris Deerin: not because of who they are (although admittedly that gives them an audience), but rather because of how they voted in 2014. The case for an independent Scotland in the EU has been elegantly made by No voter Stephen O’Rourke, who also happens to be a very clever advocate. Cynics might wonder if he is an advocate trying to drum up business, but I don’t think he is. As noted above, the dispute resolution industry that exists in London could well go elsewhere, why not an independent Scotland?

All of a sudden a comprehensible and inclusive case for Scottish independence can be made, and no-one needs to mention oil. (In fact, my advice to any nascent indyref2 campaign would be to not mention oil at all, but that’s another matter…)

What next?

Scotland and the rest of the UK is heading for the EU exit door. There will need to be a lot of Scottish and indeed EU-level manoeuvring to avoid Scotland leaving at the same time.

It will be no surprise to anyone that I am up for being a part of such manoeuvring, although it will not be a simple dance.

As with any dance, timing is clearly important. (That Sturgeon has not instigated anything yet is both interesting and, in my view, correct.)

Voting fatigue – and specifically referendum fatigue – is important.

Being perceived as asking the same question again and again until you get the answer you want is never a good place to be.

That being the case, many of the machinations I set out above about leaving the EU, coupled with the reasons why I voted Yes back in 2014,  make me perfectly happy to leave my colours pinned to the mast of Scottish independence. I have absolutely no idea if or when I will be faced with a ballot paper asking “Should Scotland be an independent country” again, but I do know how I would vote in that situation. I suspect I will have some new friends voting that way too.

Finally, with this very public declaration it seems fair to say I won’t be working at any #indyref2 count. Electoral law and all that. I might see you on the campaign trail or via the odd strategic blog post though, whenever the occasion calls for it.

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The Environmental Implications of Redistributive Land Reform Redux

On 25 August 2016 Dr. Jayne Glass, Dr. Calum Macleod and yours truly will be taking part in a public lecture at the University of Aberdeen on the Environmental Implications of Redistributive Land Reform. More information can be found here. If you click through, you will see that attendance is free but interested parties are asked to please register interest in advance by emailing my colleague Suzi Warren.

This will be a reunion lecture. Jayne, Calum and I delivered a similar lecture at the University of Edinburgh last year. A few things have happened since then, not least the passage of the Land Reform (Scotland) Act 2016. With slightly less fanfare than met that legislation, my article in the Environmental Law Review on (you guessed it) ‘The environmental implications of redistributive land reform’ has been published. (The background to that post and an open access version can be found here.) This means that even those who attended last year’s lecture should find something of interest this time around, as we update our overall content to reflect the recent legal and indeed political developments, and I update my content to reflect what the peer reviewers at the Environmental Law Review said about my article.

Although the event has been organised by the School of Law at the University of Aberdeen, it is very much designed for an interdisciplinary and not necessarily legally qualified audience. Those involved in conservation, agriculture, land management or community activism should find something of interest, or you might just be a bit nosy about what seems to be a hot political issue in Scotland. Irrespective of your background, it would be great to see you if you can make it.


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A note from the new Chair of the Scottish University Law Clinic Network

The Scottish University Law Clinic Network is an informal forum that allows students, staff and supporters involved with student law clinics in Scotland to share information and best practice with each other.

SULCN has featured on this blog before, as these posts and Storify resources from 2012, 2013, 2014 and 2015 demonstrate.

I can now add a Storify of proceedings at a workshop at Glasgow Caledonian University held on 8 June 2016 to those resources.

As noted there, two parallel sessions took place: the first on the choices and variables faced by clinics as they try to maximise community impact; and the second on Street Law. It seems to be have been a useful day for delegates and I hope the Storify shares that usefulness with those who could not attend.

Professor Donald Nicolson OBE of the University of Strathclyde led one of those sessions. Donald has been a – possibly the – key player in the clinical movement in Scotland, drawing on his experiences of law clinics in South Africa and England and Wales. He has also been a key player in my involvement with law clinics: not least as I was an undergraduate student when he established the University of Strathclyde Law Clinic, but also in his support after graduation (whether commenting on a draft article that subsequently became an article in The Law Teacher (£ – open access version here) on clinical legal education or helping with course materials for my third year “Clinical Legal Studies” course).

With that backdrop, it goes without saying I rate his views. I enjoyed his paper and related presentation at Glasgow Caledonian University, but that was not his only contribution to the day. He also suggested SULCN was in danger of drifting somewhat. His suggestion to combat that drift was to have one Chair, rather than the rotation between the universities that has happened to date. His final suggestion was that that Chair should be me.

I could not really object, could I? Fortunately, no-one at GCU objected either.

The informal nature of SULCN has already been alluded to. It has been simultaneously a blessing and a curse, in that it allows individual universities and law clinics to get on with what they want without worrying about procedures or anything like that, but it has also led to that drift Donald mentioned and questions about what role SULCN should have. There is also the question of what form SULCN should have: for a number of years I have dabbled with the idea of incorporating SULCN as a SCIO (a Scottish Charitable Incorporated Organisation). This has not happened for various reasons, most notably because SULCN has never handled any cash directly. This all leads to a question of what exactly I am now Chair of. (Answers on a postcard or a blog comment please.) (Tangentially, I note the nearest English and Welsh equivalent to SULCN – the Clinical Legal Education Organisation – is a relatively young “charitable incorporated organisation”.)

Side-stepping that question of incorporation and form, the real question is what should SULCN do next.

I think the summary of SULCN’s output to date can be summed up as follows:

  • Five events across Scotland (Paisley, Glasgow (Strathclyde), Edinburgh, Aberdeen and Glasgow (Caledonian));
  • a Twitter feed that publicises what law clinics are up to individually and shares interest stories (which has been operated by me for a number of years anyway, so no change there);
  • occasional referrals and information sharing across Scotland’s law clinics.

What more could SULCN do?

Might a bigger online presence, perhaps some sort of advice bank, be worth looking into? Or is the internet saturated, and should SULCN be looking elsewhere?

Could SULCN facilitate student work with third sector or community groups across Scotland who are unable to access affordable legal advice or support?

Or is there something else we could do?

I would like to hear from people about that, whether you are a student, an academic involved in law clinics, a lawyer, someone involved with any other advice agencies, or indeed someone who has very little idea what law clinics are or do. In fact, I would especially like to hear from you if you are in that latter camp.

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The Land Reform (Scotland) Act 2016 Scrapbook

It has been a busy time for land reform recently, in terms of legislation and electioneering. It has also been a busy time for me, in terms of writing and conferencing, not to mention the day job. This blog post aims to draw all that recent activity together in one repository. Some brief analysis then follows, with an attempt to gauge what might happen next.

Written resources

My first post-Land Reform (Scotland) Act 2016 offering was in the open access online resource The Conversation. That serves as something of an entry point, aimed at those who might not be a lawyer or Scottish.

Next I contributed to the professional journal of Scottish solicitors, the Journal of the Law Society of Scotland. Having my own blog allows me to explain the title of that article in a bit more detail. “Land reform: back, and here to stay” is supposed to sound a bit like a dramatic movie sequel. Further, it makes the serious point that land reform has indeed come back around as a topic for legislation, but also that this legislation will not shy away into the background like earlier land reform measures. This is because it sets up a framework for land reform to stay in the foreground of political thought, by way of: a new Scottish Land Commission; and the preparation and ongoing review of a land rights and responsibilities statement and guidance for community engagement. It took my a while to reach that title, but I am unduly proud of it. (It could have been called something very different.)

I then wrote something of a “long read” for the School of Law blog at the University of Aberdeen. Featuring cats.

Land Reform Road Trip

After that writing, my next phase was more like land reform tourism. The first stop was the University of Glasgow. In an afternoon session there I discussed legislating for community ownership. Other participants looked at Scottish land reform from different and, in two cases, American perspectives. The raw audio of the presentations can be found here. There are also tweets under the hashtag #GFSL2016 and from the account @Scotslaw_UofG.

Next on the tour was Belfast, for the Association of Law, Property and Society Conference 2016. As is my wont, I tweeted proceedings, but I promise I was paying attention. (Just like Stephen Bogle was in the Glasgow presentation.)

A long and varied chain from #ALPS2016 begins here.

Our own presentations built on the session in Glasgow. By “our” I mean my colleague Roddy Paisley, Glasgow’s Frankie McCarthy and Jill Robbie, Loyola New Orleans’ John Lovett, Texas A&M’s Thomas Mitchell, and me. I think it is fair to say some of what we discussed was striking for the American audience, with (and I generalise here) the USA’s different treatment of property “takings”, not to mention its brand of capitalism. For my part, I found the whole conference experience very useful. It also gave me something to speak about in the next leg of my land reform tour, namely…

On Wednesday 25 May I attended Scottish Land & Estates’ Spring Conference 2016 in Edinburgh. Again, I tweeted proceedings, except the bit when I was part of a panel discussion. My chain of tweets is here. The keynote speech was from the new Cabinet Secretary for (amongst other things) Land Reform. More on that below. Other speakers looked at case studies of landownership and the nuts and bolts of things like land registration and the new community rights of acquisition. To try to ensure my panel contribution was completely different, I decided to channel the American property theory I had been exposed to at the ALPS 2016 conference. This allowed me to showcase some of the developments and some of the challenges facing property law across the globe. I hopefully gave landowners some food for thought: my concluding remark was they can either be ahead of the curve or get caught by the curve. To its credit, SLE is already taking steps to remain ahead of the curve, notably in relation to community engagement and the facilitation of transfer of assets to communities.

That leads perfectly onto the last stop of my land reform tour. From Edinburgh (via Aberdeen for an exam board) I made my way to Stornoway for the Community Land Scotland Conference 2016. I was just a delegate, allowing me to sit back and enjoy proceedings, not to mention concentrate on social media output. My chain of tweets from that event can be found here. Whilst I might not have learnt much about the law (and nor did I expect to), I did learn a lot about the great things community landowners are up to but also some challenges they are facing. I also met some old friends and, I hope, made some new ones, so it was definitely worth the trip. On a personal note, it was pretty gratifying to get a “thank you” from the stage for my behind the scenes work in relation to human rights and land reform. (I suppose that work is not so behind the scenes now, but I am cool with that.)

In terms of newsworthy developments, again Roseanna Cunningham gave a speech, but there was also the simple fact that SLE were invited to the event to launch the new protocol for the transfer of land to interested communities. This is quite a development in itself, which was welcomed by land reform activist, and new MSP, Andy Wightman.

Andy Wightman was also sighted in a Stornoway hostelry on Friday evening…


Whilst I was not the only person to attend both the SLE and CLS events, I think I was the only (non-Scottish Government) person to witness the Cabinet Secretary’s two speeches. It would be fair to say there was a different dynamic at these occasions: one audience can be characterised as largely sceptical of further land reform, the other largely encouraging of it. For those seeking more land reform, the mood music seems to be positive, as the Cabinet Secretary asked herself a rhetorical question of whether land reform’s goal has been reached, to which she answered, “We are not there… we are not anywhere near there.” This chimes with what was said in the Q&A after her SLE speech, when she was asked if Scotland’s landownership was too concentrated. Her answer was, basically, yes.

I held my tongue in both Q&As: I felt I had probably caused the Cabinet Secretary enough hassle with a recent drone. Whilst the discussion at SLE was a bit more robust, there was still time for one awkward question at the CLS Conference, about crofting. This was put to the Cabinet Secretary by a recently dismissed member of the grazings committee at Upper Coll. As with a similar question on agricultural holdings at the SLE Conference, the Cabinet Secretary agreed to take that back to the appropriate colleague (Fergus Ewing), as Ewing has such matters within his rural remit. The splitting of these roles has been welcomed by SLE .

What next?

I think that is probably enough land reform from me for now, but Calum MacLeod has some analysis over at his blog. As for what might happen politically, I will restrict myself to two observations: this is a “long” (five year) session at the Scottish Parliament (to avoid a potential clash with a UK General Election); and no party has an overall majority at Holyrood. These two things mean that there is the potential for time to be taken for cross-party consensus to develop on land reform matters.

There is, of course, the question of which parties will form that cross-party consensus, which I will leave for another day.


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Should Scottish communities have a right to force a sale of land? A view from 2003

Does anyone remember the time the SNP tried to beef up the community right to buy in the final throes of the (first) Land Reform (Scotland) Act?

To explain, Part 2 of the Land Reform (Scotland) Act 2003 gave rural communities a right of first refusal over local assets, provided the community was properly incorporated and a registration process was followed.

When the Land Reform (Scotland) Act 2003 was still a bill, some thought it should go further.

During Stage 3 of the legislative process at Holyrood, an amendment (amendment 214) was tabled to allow for a forced sale of land – i.e. a transfer that would not require a willing seller – if the land in question was subject to a registered community interest and that registered interest had not been converted into ownership within a 5 year period. That would have been the situation where: a) the landowner never marketed or otherwise sought to transfer the land; or b) the landowner marketed the land, but later decided not to go through with a sale.

This is what was said by the SNP MSP moving the amendment:

The effect of amendment 214 is to introduce a compulsory purchase power to the bill. If community bodies have an interest in land registered for at least five years and the right to buy has not arisen, they might hold a referendum under the terms of the bill and if successful, they might apply to the local authority to purchase the land in which they have registered an interest compulsorily on their behalf. That is what we want to happen.

That amendment did not make the final cut of the Land Reform (Scotland) Act 2003. (31 voted for, 81 voted against.)

This episode might have been lost to obscure Holyrood history, doomed to be of niche interest to people like me and other political geeks. One thing makes this particular amendment just a wee bit interesting.

It was moved by Roseanna Cunningham.

The new Cabinet Secretary for Environment, Climate Change & Land Reform.

So there you go.

Post Scriptum. There are now rights on the statute books whereby communities do have certain rights to force a sale, as a result of the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016, but those rights either require: a) the land in question to be neglected, abandoned or environmentally mismanaged; or b) the community to clear more stringent sustainable development related tests before the right can kick-in. Separately, the Land Reform (Scotland) Act 2003 has been amended to widen the scope of the “pre-emptive” right to buy to urban as well as rural Scotland.

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New global commitments to expose punish and drive out corruption: implications for Scotland?

A mini-blog, on an issue that largely speaks for itself.

Part 3 of the Land Reform (Scotland) Act 2016 has rules about transparency of landownership. These went through several turns of consultation and drafting, to leave us with:

  • Section 39 (headed “Information about persons with controlling interests in owners and tenants of land”), which provides that there “must” be regulations made relating to who controls landowning entities, with a (new) related register for this; and
  • Section 43 (headed “Power of Keeper to request or require information relating to proprietors of land etc.”), which provides a power and a discretion to create regulations allowing for the Keeper of the Registers of Scotland to request information about landowners and then publicise that information in the existing Land Register.

Today, the BBC reports the following:

Foreign firms that own property in the UK will have to declare their assets publicly in a bid to stamp out money-laundering, the government says.

Companies will have to be on a new register if they hold property or want to compete for government contracts.

The statement from the Prime Minister makes clear the plan “will include companies who already own property in the UK, not just those wishing to buy.”

What are the odds of Scotland’s much lauded new transparency measures being overtaken by the UK Government’s just announced measures? The race is on.


Image Credit – @Number10gov

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