Giving away an island: Parts 1, 2 and 3

A short story follows, relating to the land mass that is Lewis and Harris (actually one island) and its surrounding islands.

Imagine you owned an island, yes, a whole island. Now imagine it is as big as Scalpay in the Outer Hebrides. Now imagine that you simply gifted it to the residents. Far fetched? Well, no actually. A chap called Fred Taylor did just that. As it happens, a gift in Scots law requires intention to receive on the part of the donee as well as intention to give on the part of the donor, and this intention to receive was emphatically sealed by a clear vote in favour. I mean, who would refuse the offer of an island, with all the opportunities for enterprise owning an island might bring?

Well, the National Trust of Scotland might, that is who. The NTS (as reported in the Daily Mail, I can find nothing official from the NTS on this) knocked-back a legacy (by which I mean a gift in a will) of Little Bernera, an uninhabited island on the opposite side of Lewis and Harris to Scalpay. Over to the Daily Mail for the relevant text:

The conservation charity said they rejected the island because Little Bernera is not ‘significant’ enough to warrant the cost it would take to keep.

Only a few weeks ago, the NTS described the bequest as “an extraordinary act of generosity from a man who led an extraordinary life.’

However, a spokesman for the Trust, confirmed that in recent years it has not taken charge of heritage properties without an endowment to help meet their maintenance costs.

‘With regret, the Trust is declining the generous bequest of the island of Little Bernera made by the late Count Robin Mirrlees,’ he said.

Now Scalpay and Little Bernera are not the same, but imagine regarding the opportunity to revitalise an island that was inhabited not too long ago (but not, admittedly, in living memory), yet regarding this as simply too onerous. Is this a missed opportunity?

Why would anyone else refuse an offer of land? Well, it happened before. On Lewis. When Lord Leverhulme offered Stornoway and its nearby districts to islanders in one package, and outlying districts in another. Stornoway accepted. The other islanders did not. They felt it would be too onerous. The then Secretary of State for Scotland Novar refused to make any special help available to the inhabitants to help with any (say) tax burdens, and the outlying land was parcelled up and sold at auction. The successors to Leverhulme still own much of Lewis. Relations are not always cordial. Meanwhile the community owned Stornoway Trust houses most of the island’s population. Is there a lesson there? If so, have we not learnt?

You might have noticed I have not mentioned the Land Reform (Scotland) Act 2003 at all in this blog, until now. That’s because it is not relevant to a gift or succession situation. This is #notlandreformnews, despite some reports on the BBC and in The Scotsman (and a corresponding blog). I have not seen the will gifting Little Bernera, but I suspect there was no clause allowing anyone else to benefit in place of the NTS, so the island falls back in to the estate to be mopped up with a suitable residue clause. This is likely to be his grandson, and not Prince Harry. (How is that for a bizarre tangent?) Talk of locals intervening in succession arrangements strikes me as wrongheaded, given sections 40 and 43 of the relevant legislation (i.e. this would be a transfer otherwise than for value without any question of avoidance).

One thing that might be teased from the Land Reform (Scotland) Act 2003, when you look at the central role of communities, is that community ownership is a good thing. Why, then, are we reliant on such a particular constellation of facts and goodwill to get the land into the hands of communities? Please send your answers to the Land Reform Review Group. Or comment below.

About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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1 Response to Giving away an island: Parts 1, 2 and 3

  1. Pingback: Giving away an island: Part 4 (and other land reform stories) | basedrones

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